october 4, 2016 06:30 pm his demurrer because evidence relating to the various acts were not...

IN THE SUPREME COURT OF THE STATE OF OREGON

STATE OF OREGON,

Plaintiff-Respondent,

v.

DAVID RAY TAYLOR,

Defendant-Appellant.

Lane County Circuit Court Case No. 201216842 SC S062310

APPELLANT’S OPENING BRIEF AND EXCERPT OF RECORD

Appeal from the Judgment of the Circuit Court for Lane County

Honorable Charles M. Zennaché, Judge

ERNEST G. LANNET #013248 Chief Defender Criminal Appellate Section DANIEL C. BENNETT #073304 Senior Deputy Public Defender ANDREW D. ROBINSON #064861 Deputy Public Defender Office of Public Defense Services 1175 Court Street NE Salem, OR 97301

[email protected] Phone: (503) 378-3349

Attorneys for Defendant-Appellant

ELLEN F. ROSENBLUM #753239 Attorney General BENJAMIN GUTMAN #160599 Solicitor General TIMOTHY SYLWESTER #813914 Assistant Attorney General 400 Justice Building 1162 Court Street NE Salem, OR 97301

[email protected] Phone: (503) 378-4402 Attorneys for Respondent on Review

62810 10/16

October 4, 2016 06:30 PM

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TABLE OF CONTENTS

STATEMENT OF THE CASE ............................................................................ 1

Nature of the Proceeding .............................................................................. 1 Nature of the Judgment ................................................................................. 1 Jurisdiction .................................................................................................... 3 Questions Presented and Summary of Arguments ....................................... 3 Summary of Facts ....................................................................................... 22

I. Facts relevant to the guilt phase ..................................................... 23

A. Background ................................................................................. 23 B. The Creswell bank robbery ......................................................... 23 C. The Murder of Jr........................................ 28 D. The Mapleton Robbery ............................................................... 36 E. The disposal of the victim’s body. .............................................. 39 F. The police investigation. ............................................................. 40

II. Facts introduced during the penalty phase ..................................... 48

PART ONE: ASSIGNMENTS OF ERROR PRESENTING ISSUES UNIQUE TO THIS APPEAL ............................................................................................. 49

FIRST ASSIGNMENT OF ERROR .................................................................. 49

The trial court erred when it declined to instruct the jury on defendant’s requested lesser-included theory of manslaughter on Count 14, aggravated murder.

SECOND ASSIGNMENT OF ERROR ............................................................. 49


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THIRD ASSIGNMENT OF ERROR ................................................................. 50


FOURTH ASSIGNMENT OF ERROR ............................................................. 50


Combined Preservation of Error ................................................................. 50 Combined Standard of Review ................................................................... 53 Combined Argument ................................................................................... 54

I. Defendant was entitled to an instruction on the lesser-included offense of manslaughter for each count of aggravated murder .............. 54 II. The trial court’s failure to instruct on the lesser-included offense of manslaughter was not harmless. ......................................................... 60 III. The trial court’s failure to instruct on the lesser-included offense of manslaughter also violated defendant’s rights under the United States Constitution. ................................................................................. 68

FIFTH ASSIGNMENT OF ERROR .................................................................. 70

The trial court erred when it imposed a sentence of death during the pendency of the governor’s moratorium on carrying out capital punishment in Oregon.

SIXTH ASSIGNMENT OF ERROR ................................................................. 70

The trial court erred when it declined to instruct the jury that it “must conclude” that a sentence of death, if imposed, would be carried out and that the governor did not have the power to repeal the death penalty.

Preservation of Error ................................................................................... 71 Standard of Review ..................................................................................... 74 Argument .................................................................................................... 75

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I. The trial court plainly erred when it entered a sentence of death during the death penalty moratorium. ..................................................... 76 II. In the alternative, the trial court erred in rejecting defendant’s proposed modifications to its cautionary instruction regarding the moratorium. ............................................................................................. 80

SEVENTH ASSIGNMENT OF ERROR ........................................................... 82

The trial court erred by denying defendant’s motion for a new trial.

Preservation of Error ................................................................................... 82 Standard of Review ..................................................................................... 87

I. This court’s remand order gave the trial court jurisdiction to decide the new trial motion. .................................................................... 88 II. The motion was timely. .................................................................. 89 III. Defendant is entitled to a new trial because of Moser’s misconduct. ............................................................................................. 92

A. Moser was biased; in addition, she possessed extrajudicial information derived from “reading the search warrants.” .................. 94

1. Moser’s email shows actual bias. ........................................... 95 2. Moser’s dishonesty during voir dire establishes a presumption of bias. ........................................................................ 96 3. Moser made untruthful statements during voir dire and a correct response would have resulted in a challenge for cause. ..... 98

B. The state failed to prove that Moser’s bias and extrajudicial information did not taint the jury. ....................................................... 99

EIGHTH THROUGH THIRTIETH ASSIGNMENTS OF ERROR ...............103

The trial court erred when it declined to provide an instruction requiring the jury to concur on a specific theory of robbery for each of Counts 1-10, 13, and 19-30.

Combined Preservation of Error ...............................................................103

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Combined Standard of Review .................................................................107 Combined Argument .................................................................................107

I. The court was required to instruct the jury that it had to concur on which factual scenarios constituted robbery as alleged in Counts 1-10, 13, and 19-30. ..............................................................................107 II. The state’s two theories of robbery involved separate elements and necessitated a concurrence instruction. ..........................................111 III. The failure to give a jury concurrence instruction violated the Due Process Clause of the Fourteenth Amendment. ............................115

THIRTY-FIRST ASSIGNMENT OF ERROR ................................................117

The trial court erred when it denied defendant’s demurrer to Count 12, kidnapping in the first degree.

THIRTY-SECOND ASSIGNMENT OF ERROR ...........................................117

The trial court erred when it denied defendant’s demurrer to Count 15, aggravated murder.

THIRTY-THIRD ASSIGNMENT OF ERROR ...............................................117

The trial court erred when it denied defendant’s demurrer to Count 16, aggravated murder.

Combined Preservation of Error ...............................................................117 Combined Standard of Review .................................................................119 Combined Argument .................................................................................119

THIRTY-FOURTH ASSIGNMENT OF ERROR ...........................................124

The trial court erred when it denied defendant’s motion to sever Counts 1-10, 11, 19-30, and 31.

THIRTY- FIFTH ASSIGNMENT OF ERROR ...............................................125

The trial court erred when it denied defendant’s demurrer in which he argued that the charges were improperly joined.

Combined Preservation of Error ...............................................................125

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Combined Standard of Review .................................................................128 Combined Argument .................................................................................129

I. The trial court should have granted defendant’s motion to sever and his demurrer because evidence relating to the various acts were not cross-admissible and defendant was prejudiced by their inclusion. ...............................................................................................129 II. The trial court should have granted defendant’s demurrer because the state failed to allege the basis of joinder in the indictment. ...........136

THIRTY-SIXTH ASSIGNMENT OF ERROR ...............................................140

The trial court erred when it denied defendant’s motion to suppress defendant’s statements.

Preservation of Error .................................................................................140 Standard of Review ...................................................................................148 Argument ..................................................................................................148

I. The trial court erred in failing to suppress all of defendant’s statements made after he invoked his right to counsel. ........................148 II. The trial court’s failure to suppress the results of the state’s unlawful questioning of defendant was harmful. .................................155

THIRTY-SEVENTH ASSIGNMENT OF ERROR .........................................156

The trial court erred when it denied defendant’s request for a mistrial based on the prosecution’s inquiry to Mercedes Crabtree regarding her plea deal requiring her to testify truthfully.

THIRTY-EIGHTH ASSIGNMENT OF ERROR ............................................156

The trial court erred when it denied defendant’s request objection based on the prosecution’s inquiry to Mercedes Crabtree regarding her plea deal requiring her to testify truthfully.

Combined Preservation of Error ...............................................................157 Combined Standard of Review .................................................................159

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Combined Argument .................................................................................159

THIRTY-NINTH ASSIGNMENT OF ERROR ...............................................164

The trial court erred when it denied defendant’s motion for a mistrial based upon the discovery that Steve Gorham, Crabtree’s attorney, spent the night at the trial judge’s home during the pendency of this case.

FORTIETH ASSIGNMENT OF ERROR ........................................................164

The trial court erred when it denied defendant’s motion for recusal based upon the discovery that Steve Gorham, Crabtree’s attorney, spent the night at the trial judge’s home during the pendency of this case.


FORTY-FIRST ASSIGNMENT OF ERROR ..................................................179

The trial court erred when it denied defendant’s “vouching” objection during the state’s examination of


FORTY-SECOND THROUGH SIXTY-EIGHTH ASSIGNMENTS OF ERROR .............................................................................................................184

The trial court erred when it denied defendant’s motion for judgment of acquittal on the Creswell robbery counts, the murder counts, and the Mapleton robbery counts.


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SIXTY-NINTH THROUGH EIGHTY-FIRST ASSIGNMENTS OF ERROR .............................................................................................................188

The trial court erred when it overruled defendant’s objection to the admission of exhibits 79-91, photographs of the victim, as impermissible victim-impact evidence during the guilt-phase.

EIGHTY-SECOND ASSIGNMENT OF ERROR ...........................................188

The trial court erred when it overruled defendant’s objection to the admission of exhibit 94, a surveillance video of the victim, as impermissible victim-impact evidence during the guilt-phase.

EIGHTY-THIRD ASSIGNMENT OF ERROR ...............................................188

The trial court erred when it overruled defendant’s objection to the victim’s mother’s testimony on the grounds that it constituted victim-impact evidence.

EIGHTY-FOURTH ASSIGNMENT OF ERROR ...........................................189

The trial court erred when it overruled defendant’s motion for a mistrial during the victim’s mother’s testimony on the grounds that her testimony constituted victim-impact evidence.


EIGHTY-FIFTH ASSIGNMENT OF ERROR ................................................195

The trial court erred when it granted the state’s motion in limine and prevented defendant from inquiring about a prior murder accusation against in Colorado.


EIGHTY-SIXTH ASSIGNMENT OF ERROR ...............................................201

The trial court erred by denying defendant’s motion to suppress evidence derived from the use of tracking devices.

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I. Using the trackers violated Article I, section 9. ...........................205 II. ORS 136.432 does not preclude suppression. ..............................207 III. The state derived evidence from the use of the tracking devices. 208

EIGHTY-SEVENTH ASSIGNMENT OF ERROR.........................................208

The trial court erred by admitting evidence derived from the use of tracking devices.


I. The state’s foundational evidence did not establish the evidence’s scientific validity. ...............................................................212

A. The foundational evidence contains crucial gaps. ....................214 B. The foundational evidence was silent, at best, on numerous important Brown factors. .................................................................215

II. The facts judicially noticed by the court did not establish the evidence’s scientific validity. ...............................................................216 III. The error was harmful. .................................................................218

EIGHTY-EIGHTH ASSIGNMENT OF ERROR ............................................219

The trial court erred in denying defendant’s requested jury instruction that the jury could consider mercy flowing from the evidence.

EIGHTY-NINTH ASSIGNMENT OF ERROR ..............................................219

The trial court erred in denying defendant’s requested jury instruction on mercy alone.

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I. A jury may be instructed not to return a penalty-phase verdict based on sympathy, but that does not bar the jury from returning a verdict based on mercy. ........................................................................222

A. To exercise mercy is to act on moral reasoning; mercy is thus distinct from sympathy. ....................................................................223 B. Capital sentencing jurors may render verdicts other than death on mercy alone. .................................................................................225 C. Numerous jurisdictions have deemed mercy an acceptable consideration for a capital sentencing jury. ......................................226

II. Oregon’s open-ended capital sentencing scheme means that a penalty-phase jury’s decision to impose a sentence other than death need not be based on specific mitigating evidence, but may instead derive from general moral reasoning. ...................................................228 III. To exclude mercy from penalty-phase jury instructions dehumanizes the jury and diminishes the quality of the jury’s moral reasoning. ..............................................................................................229

NINETIETH ASSIGNMENT OF ERROR ......................................................232

The trial court erred when it denied defendant’s motion to delay enforcement of restitution.


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PART TWO: ASSIGNMENTS OF ERROR INVOLVING SYSTEMIC CHALLENGES TO OREGON’S CAPITAL PUNISHMENT SCHEME AND OTHER ISSUES PREVIOUSLY ADDRESSED BY THIS COURT .............237

NINETY-FIRST THROUGH ONE HUNDRED TWENTY-SECOND ASSIGNMENT OF ERROR ............................................................................237

With each ruling, the trial court erred by engaging in the process of “death-qualifying” (that is, excluding prospective jurors who expressed opposition to the death penalty) the jury in violation of defendant’s rights to due process of law, an unbiased jury and a fair cross-section of the community under Article I, section 11, and the Fourteenth Amendment.


ONE HUNDRED TWENTY-THIRD ASSIGNMENT OF ERROR ...............246

The trial court erred when it denied defendant’s demurrer because ORS 163.095 and ORS 163.150 fail to adequately narrow the class of persons eligible for the death penalty in violation of the Eighth Amendment.


ONE HUNDRED TWENTY-FOURTH ASSIGNMENT OF ERROR ...........251

The trial court erred in denying defendant’s demurrer, because Oregon’s death penalty scheme permits arbitrary application of the punishment by granting district attorneys unbridled discretion over who is charged with aggravated murder and whether evidence is offered at the penalty phase.

Preservation of Error .................................................................................251 Standard of Review ...................................................................................251

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Argument ..................................................................................................252

ONE HUNDRED TWENTY-FIFTH ASSIGNMENT OF ERROR ................254

The trial court erred when it imposed a sentence of death even though the indictment failed to allege the factors the rendered defendant eligible for the death penalty under ORS 163.150.


I. Defendant’s argument in this case is distinguishable from this court’s holding in State v. Terry. ..........................................................259 II. This court’s holding in Wagner, and its subsequent reliance on that holding in Terry, should be overruled as inconsistent with precedent and a defendant’s right to a jury trial. ..................................262

ONE HUNDRED TWENTY-SIXTH ASSIGNMENT OF ERROR ...............264

The trial court erred when it ruled that the second question, ORS 163.150(1)(b)(B), does not violate Article I, sections 16, 20, and 21, of the Oregon Constitution or the Sixth, Eighth, and Fourteenth Amendments to the United States Constitution because it is unconstitutionally vague, violates a defendant’s right to juror unanimity, and because it asks the jury to find a probability beyond a reasonable doubt.


I. Introduction ...................................................................................266 II. ORS 163.150(1)(b)(B) violates the Sixth Amendment and the Due Process Clause of the Fourteenth Amendment, because it provides for a finding based on proof less than beyond a reasonable doubt on a fact necessary to impose a penalty greater than that authorized by the conviction itself. ....................................................................................267

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III. ORS 163.150 is unconstitutionally vague in violation of Article I, sections 20 and 21 .............................................................................269 IV. ORS 163.150(1)(b) is unconstitutional on its face as an aggravating circumstance. ....................................................................271

ONE HUNDRED TWENTY-SEVENTH ASSIGNMENT OF ERROR .........273

The trial court erred in denying defendant’s demurrer on all counts because ORS 163.150(1)(b)(D), as modified by the instruction required by ORS 163.150(1)(c)(B), is unconstitutional on its face under the Eighth and Fourteenth Amendments to the United States Constitution and Article I, sections 16, 20, and 21, of the Oregon Constitution.


I. Introduction ...................................................................................274 II. ORS 163.150 permits the admission of evidence far beyond the victim impact evidence approved in Payne. .........................................277 III. OEC 404(3), which governs the admission of prior bad acts, does not contain the balancing test identified by the Court in Payne as the constitutional safeguard for aggravating evidence presented on the fourth question. .....................................................................................279 IV. The plain wording of ORS 163.150 violates the Eighth and Fourteenth Amendments of the United States Constitution by permitting a capital jury to disregard mitigating evidence altogether. .280 V. ORS 163.150 is unconstitutional under the Sixth and Fourteenth Amendments, because it allows the imposition of a death sentence based on evidence without a jury finding of any fact beyond a reasonable doubt. ..................................................................................282

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VI. ORS 163.150 allows the imposition of a non-unanimous death sentence in violation of Article I, section 11, of the Oregon Constitution and the Sixth Amendment to the United States Constitution. ..........................................................................................284 VII. Adding non-specific aggravating factors to the fourth question precludes meaningful appellate review of the jury’s ultimate decision. ................................................................................................286

ONE HUNDRED TWENTY-EIGHTH ASSIGNMENT OF ERROR ............288

The trial court erred when it denied defendant’s Motion to Reapportion Sentencing Closing Arguments.


ONE HUNDRED TWENTY-NINTH ASSIGNMENT OF ERROR ..............292

The trial court erred in imposing the death penalty over defendant’s Eighth Amendment objection to Oregon’s system of lethal injection.


I. Introduction ...................................................................................293 II. Oregon’s lethal injection protocol lacks the safeguards in the Kentucky protocol that were relied upon by the Baze Court. ..............294

A. The training and qualifications of persons administering the drugs ..................................................................................................296 B. The presence of backup IVs and procedures for employing them...................................................................................................297

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III. The safeguards missing from Oregon’s protocol address the dangers of improper administration of the drugs, in particular the sodium thiopental that serves as the anesthetic in the procedure .........298

ONE HUNDRED THIRTIETH ASSIGNMENT OF ERROR ........................302

The trial court erred by giving the jury an “acquittal first” jury instruction.

ONE HUNDRED THIRTY-FIRST ASSIGNMENT OF ERROR ..................302

The trial court erred in refusing to give defendant’s request special jury instruction number 21.


I. The acquittal-first instruction violates the United States Constitution. ..........................................................................................304

CONCLUSION .................................................................................................309

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TABLE OF AUTHORITIES

CASES

Ailes v. Portland Meadows, Inc., 312 Or 376, 823 P2d 956 (1991) .................. 74 Alternative Realty v. Michaels, 90 Or App 280, 753 P2d 419 (1988) ................ 91 Apprendi v. New Jersey, 530 US 466, 120 S Ct 2348, 147 L Ed 2d 435 (2000) ................ 267, 283, 284 Baze v. Rees, 553 US 35, 128 S Ct 1520, 170 L Ed 2d 420 (2008) ......................................... 21, 293, 294, 295, 296, 297 Bean v. Calderon, 163 F3d 1073 (9th Cir 1998), cert den, 528 US 922 (1999) ................................................................ 131, 132 Beck v. Alabama, 447 US 625, 100 S Ct 2382, 65 L Ed 2d 392 (1980) .......................... 306, 307 Bennett v. Commonwealth, 978 SW2d 322 (Ky 1998) ....................................194 Bennett v. Farmers Ins. Co. of Oregon, 332 Or 138, 26 P3d 785, 794 (2001) ..................................................... 87, 309 Blakely v. Washington, 542 US 296, 124 S Ct 2531, 159 L Ed 2d 403 (2004) ................ 267, 283, 284 Booth v. Maryland, 482 US 496, 107 S Ct 2529, 96 L Ed 2d 440 (1987) .......... 118, 275, 276, 279 Buchanan v. Angelone, 522 US 269, 118 S Ct 757, 139 L Ed 2d 702 (1998) ............................ 53, 221 Caldwell v Mississippi, 472 US 320, 105 S Ct 2633, 86 L Ed 2d 231 (1985) ...... 74, 76, 77, 78, 79, 80 California v. Brown, 479 US 538, 107 S Ct 837, 93 L Ed 2d 934 (1987)............................. 223, 232

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Caperton v. A.T. Massey Coal, Co., Inc., 56 US 868, 129 S Ct 2252, 173 L Ed 2d 1208 (2009) ........................ 174, 178 Carter v. Mote, 285 Or 275, 590 P2d 1214 (1979) ............................................ 53 Chambers v Mississippi, 410 US 284, 93 S Ct 1038, 35 L Ed 2d 297 (1973) ......................................200 Charles v. Palomo, 347 Or 695, 227 P3d 737 (2010) ......................................291 Connecticut v. Barrett, 479 US 523, 107 S Ct 828, 93 L Ed 2d 920 (1987) ....152 Crimson v. Parks, 238 Or App 312, 241 P3d 1200 (2000) ................................ 54 Davis v. Woodford, 384 F3d 628 (9th Cir 2004), cert dismissed, 545 US 1165 (2005) .................................................... 131, 132 Dickson v. Sullivan, 849 F2d 403 (9th Cir 1988) ............................................... 99 Drake v. Kemp, 762 F2d 1449 (11th Cir 1985) ....................................... 225, 261 Duncan v. Louisiana, 391 US 145, 88 S Ct 1444, 20 L Ed 2d 491 (1968) ......239 Dungey v Fairview Farms, 205 Or 615, 290 P2d 181 (1955) ............................ 80 Dyer v. Calderon, 151 F3d 970 (9th Cir 1998) .................................................. 97 Eddings v Oklahoma, 455 US 104, 102 S Ct 869, 71 L Ed 2d 1 (1982) ..........274 Ernst v. Commonwealth, 160 SW3d 744 (Ky 2005) ........................................194 Ertsgaard by Ertsgaard v. Beard, 310 Or 486, 800 P2d 759 (1990) ................. 87 Estelle v McGuire, 502 US 62, 112 S Ct 475, 116 L Ed 2d 385 (1991) ..........195 Ex parte Rieber, 663 So2d 999 (Ala 1995) ......................................................194 Farmer v. Brennan, 511 US 825, 114 S Ct 1970, 128 L Ed 2d 811 (1994) .....295 Featherstone v. Estelle, 948 F2d 1497 (9th Cir 1991) .....................................131

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Fields v. Brown, 503 F3d 755 (9th Cir 2007) ..................................................... 95 Foster v. Miramontes, 352 Or 401, 287 P3d 1045 (2012) ...............................303 Furman v. Georgia, 408 US 238, 92 S Ct 2726, 33 L Ed 2d 346 (1972) .......... 248, 252, 253, 270, 271, 288, 308 Gardner v. Florida, 430 US 349, 97 S Ct 1197, 51 L Ed 2d 393 (1977) ........... 69 Godfrey v Georgia, 446 US 420, 100 S Ct 1759, 64 L Ed 2d 398 (1980) .......................... 270, 273 Gray v. Mississippi, 481 US 648, 107 S Ct 2045 (1987) .................................240 Green v. White, 232 F3d 671 (9th Cir 2000) ...................................................... 97 Gregg v. Georgia, 428 US 153, 96 S Ct 2909, 49 L Ed 2d 859 (1976) ..... 225, 248, 250, 270, 271 Griffin v. California, 380 US 609, 85 S Ct 1229, 14 L Ed 2d 106 (1965) ............................. 156, 239 Harmelin v. Michigan, 501 US 957, 111 S Ct 2680, 115 L Ed 2d 836 (1991) .................................229 Haugen v. Kitzhaber, 353 Or 715, 306 P3d 592 (2013), cert den, ___ US ___, 134 S Ct 1009 (2014) ............................ 75, 76, 79, 302 Haynes v. State, 2008 WY 75, ¶38, 186 P3d 1204 (Wyo. 2008) .....................194 Hernandez v. Barbo Mach. Co., 327 Or 99, 957 P2d 147 (1998) ...................... 53 Herrera v. Collins, 506 US 390, 113 S Ct 853, 122 L Ed 2d 203 (1993) ........186 Herring v. New York, 422 US 853, 95 S Ct 2550, 45 L Ed 2d 593 (1975) ......290 Honda Motor Co. v. Oberg, 512 US 415, 114 S Ct 2331, 129 L Ed 2d 336 (1994) .................................287 In re Murchison, 349 US 133, 75 S Ct 623, 99 L Ed 942 (1955) ........... 176, 177

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In re Winship, 397 US 358 90 S Ct 1068, 25 L Ed 2d 368 (1970) ...................186 Jackson v. Virginia, 443 US 307, 314 99 S Ct 2781, 61 L Ed 2d 560 (1979) ..................... 115, 186 Jennings v. Baxter Healthcare Corp., 331 Or 285, 14 P3d 596 (2000) ...........212 Johnson v. Texas, 509 US 350, 113 S Ct 2658, 125 L Ed 2d 290 (1993) ........ 221, 222, 223, 224 Jones v. United States, 526 US 227, 119 S Ct 1215, 143 L Ed 2d 311 (1999) 255 Jurek v. Texas, 428 US 262, 96 S Ct 2950, 49 L Ed 2d 929 (1976) ................286 Keeble v. United States, 412 US 205, 93 S Ct 1993, 36 L Ed 2d 844 (1973) ......................... 69, 70, 307 Lockhart v. McCree, 476 US 162, 106 S Ct 1758, 90 L Ed 2d 137 (1986) .................. 240, 241, 242 Lowenfield v. Phelps, 484 US 231, 108 S Ct 546, 98 L Ed 2d 568 (1988) ......249 Lucero v. Kerby, 133 F3d 1299 (10th Cir 1998), cert den, 523 US 1110 (1998) .......................................................................132 Malloy v. Hogan, 378 US 1, 84 S Ct 1489, 12 L Ed 2d 653 (1964) ....... 148, 247 Marino v. Vasquez, 812 F2d 499 (9th Cir1987) ................................................. 99 Marlin v. T’Vault, 1 Or 77, 78 (1854) ................................................................ 80 Maynard v. Cartwright, 486 US 356, 108 S Ct 1853, 100 L Ed 2d 372 (1988) .................................270 McDonough Power Equip., Inc. v. Greenwood, 464 US 548, 104 S Ct 845, 78 L Ed 2d 663 (1984)........................................ 98 McKenzie v. Risley, 842 F2d 1525 (9th Cir), cert den, 488 US 901 (1988) .....286 Mills v. Maryland, 486 US 367, 108 S Ct 1860, 100 L Ed 2d 384 (1988) .......278

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Miranda v. Arizona, 384 US 436, 86 S Ct 1602, 16 L Ed 2d 694 (1966) ....... 46, 141, 149, 150, 151

v. Illinois, 504 US 719, 112 S Ct 2222, 119 L Ed 2d 492 (1992) ...... 1, 96, 162, 184, 226 Moro v. State, 354 Or 657, 320 P3d 539, 541 (2014) ......................................173 Mount v. Welsh, 118 Or 568, 247 P 815 (1926) ...............................................239 Offutt v. United States, 348 US 11, 75 S Ct 11, 99 L Ed 11 (1954) .................176 Parker v. Dugger, 498 US 308, 111 S Ct 731, 112 L Ed 2d 812 (1991) .........286 Parker v. Gladden, 385 US 363, 87 S Ct 468, 17 L Ed 2d 420 (1966) ............101 Payne v. Tennessee, 501 US 808, 111 S Ct 2597, 115 L Ed 2d 720 (1991) ........................... 19, 20, 193, 276, 277, 278, 279, 280 Penry v. Lynaugh, 492 US 302, 109 S Ct 2934, 106 L Ed 2d 256 (1989),

abrogated by Atkins v. Virginia, 536 US 304, 122 S Ct 2242, 153 L Ed 2d 335 (2002) (Penry I) ....................................... 225, 275, 281, 282 Penry v. Johnson, 532 US 782, 121 S Ct 1910, 150 L Ed 2d 9 (2001) (Penry II) .............................................................................................. 281, 282 People v. Bandhauer, 426 P2d 900, cert den, 389 US 878 (1967) ..................291 PGE v. Bureau of Labor & Industries, 317 Or 606, 859 P2d 1143 (1993) ......229 Powell v. Texas, 392 US 514, 88 S Ct 145, 20 L Ed 2d 1254 (1968) ..... 247, 272 Remmer v. United States, 347 US 227, 74 S Ct 450, 98 L Ed 654 (1954) ......... 99 Robinson v California, 370 US 660, 82 S Ct 1417, 8 L Ed 2d 758 (1962) ............................... 247, 272 Rosemond v. Catoe, 383 SC 320, 680 S E 2d 5 (2009) ....................................227 Saffle v. Parks, 494 US 484, 110 S Ct 1257, 108 L Ed 2d 415 (1990) ............223

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Sandoval v. Calderon, 241 F3d 765 (9th Cir 2000), cert den 534 US 943 (2001) ..........................................................................131 Schad v Arizona, 501 US 624, 111 S Ct 2491, 115 L Ed 2d 555 (1991) 107, 115 Segundo v. State, 270 SW 3d 79 (Tex Crim App, 2008) ..................................134 Skipper v South Carolina, 476 US 1, 106 S Ct 1669, 90 L Ed 2d 1 (1986) ................................... 274, 290 South Carolina v. Gathers, 490 US 805, 109 S Ct 2207, 104 L Ed 2d 876 (1989) ........................ 276, 278 State ex rel Huddleston v. Sawyer, 324 Or 597, 932 P2d 1145, cert den, 522 US 994 (l997) .........................................................................234 State ex rel. Juvenile Dep’t of Clackamas Cty. v. M.A.D., 348 Or 381, 233 P3d 437 (2010) ..................................................................205 State v. Allen, 301 Or 35, 717 P2d 1178 (1986) ...............................................305 State v. Amini, 331 Or 384, 15 P3d 541 (2000) ................................................239 State v. Avila-Nava, 356 Or 600, 341 P3d 714 (2014) .................... 148, 152, 153 State v. Barker, 140 Or App 82, 914 P2d 11, rev den, 323 Or 265 (1996) ......136 State v. Barnes, 329 Or 327, 986 P 2d 1160 (1999) ........................................... 53 State v. Barone, 329 Or 210, 986 P2d 5 (1999) ............... 128, 192, 199, 239, 240 State v. Beck, 269 Or App 304, 344 P3d 140 (2015), rev den, 357 Or 164 (2015) .......................................................... 4, 54, 69, 308 State v. Boots, 308 Or 371, 780 P2d 725 (1989) ......... 105, 106, 109, 110, 111, 118, 284, 285 State v. Bowen, 340 Or 487, 135 P3d 272 (2006) ....................................... 57, 65 State v. Boyd, 360 Or 302, __ P3d __ (September 22, 2016) ...........................154

xxi

State v. Brake, 99 Or 310, 195 P 583 (1921) ....................................................187 State v. Branch, 243 Or App 309, 259 P3d 103 (2011) ....................................211 State v. Brown, 297 Or 404, 687 P2d 751 (1984) ............ 211, 212, 213, 215, 216 State v. Brown, 306 Or 599, 761 P2d 1300 (1988) .......................... 4, 54, 75, 210 State v. Brumwell, 350 Or 93, 249 P3d 965 (2011) ................................. 191, 284 State v. Campbell, 306 Or 157, 759 P2d 1040 (1988) ......................................205 State v. Carlisle, Cuyahoga App No. 90223, 2008-Ohio-3818, ¶53 ................194 State v. Castilleja, 345 Or 255, 192 P3d 1283, adh’d to on recons, 345 Or 473 (2008) ........................................................204 State v. Cavan, 337 Or 433, 98 P3d 381 (2004) ................................................. 97 State v. Cazares-Mendez, 350 Or 491, 256 P3d 104 (2011) ..................... 92, 199 State v. Cervantes, 232 Or App 567, 223 P3d 425 (2009) ...................... 119, 129 State v. Chakerian, 325 Or 370, 938 P2d 756 (1997) ......................................270 State v. Charboneau, 323 Or 38, 913 P2d 308 (1996) ............................ 161, 183 State v. Ciancanelli, 339 Or 282, 121 P3d 613 (2005) .....................................264 State v. Clemmons, 753 SW 2d 901 (Mo 1988) ...............................................227 State v. Corgain, 63 Or App 26, 663 P2d 773 (1983) ..................... 159, 160, 162, 181, 182, 183 State v. Cotton, 240 Or 252, 400 P2d 1022 (l965) ...........................................234 State v. Cunningham, 320 Or 47, 880 P2d 431, (1994) ......... 22, 55, 56, 253, 287 State v. Davis, 313 Or 246, 834 P2d 1008 (1992) ............................................204 State v. Davis, 336 Or 19, 77 P3d 1111 (2003) ............... 155, 160, 182, 195, 218

xxii

State v. Davis, 350 Or 440, 256 P3d 1075 (2011) ............................................149 State v. Eby, 296 Or 63, 673 P2d 522 (1983) .......................... 159, 160, 181, 182 State v. Evans, 344 Or 358, 182 P3d 175 (2008) ................................................ 96 State v. Fanus, 336 Or 63, 79 P3d 847 (2003) ................................................... 96 State v. Fitzgerald, 267 Or 266, 516 P2d 1280 (1973) .....................................138 State v. Garza, 125 Or App 385, 865 P2d 463 (1993), rev den, 319 Or 81 (1994) .................................................................... 173, 177 State v. Gentry, 125 Wn 2d 570, 888 P2d 1105 (1995) ....................................227 State v. Geosser, 203 Or 315, 280 P2d 354 (1955) ..........................................255 State v. Gibson, 338 Or 560, 113 P3d 423 (2005) ................................... 198, 278 State v. Graves, 299 Or 189, 700 P2d 244 (1985) ..................... 86, 100, 101, 270 State v. Guzek, 322 Or 245, 906 P2d 272 (1995) .............................................192 State v. Hall, 327 Or 568, 966 P2d 208 (1998) ................................................186 State v. Haugen, 349 Or 174, 243 P3d 31 (2010) .............................................301 State v. Henry, 138 Or App 286, 907 P2d 1133 (1995) ..................................... 56 State v. Hoffman, 236 Or 98, 385 P2d 741 (1963) ...........................................257 State v. Horsley, 168 Or App 559, 7 P3d 646 (2000) .......................................234 State v. Huennekens, 245 Or 150, 420 P2d 384 (1966) ........................... 137, 138 State v. Jackson, 252 Or App 74, 284 P3d 1266 (2012) .................................... 60 State v. Jackson/Hoang, 145 Or App 27, 929 P2d 323 (l996), rev den, 326 Or 390 (l998)............................................................................233 State v. Johns, 301 Or 535, 725 P2d 312 (1986) ..............................................133

xxiii

State v. Johnson, 313 Or 189, 832 P2d 443 (1992) ..........................................133 State v. Kell, 303 Or 89, 734 P2d 334 (1987) ...................................................152 State v. Kleypas, 272 Kan 894, 40 P3d 139 (2001) ..........................................227 State v. Langley, 314 Or 511, 840 P2d 691 (1992) ..........................................136 State v. Lark, 316 Or 317, 851 P2d 1114 (1993) ..............................................261 State v. Larson, 325 Or 15, 933 P2d 958 (1997) ..............................................156 State v. Leathers, 271 Or 236, 531 P2d 901 (l975) ..........................................234 State v. Leistiko, 352 Or 172, 282 P3d 857 (2012) ...........................................135 State v. Lewis, 236 Or App 49, 234 P3d 152, rev den, 349 Or 172 (2010) ......235 State v. Link, 346 Or 187, 208 P3d 936 (2009) ................................................185 State v. Lotches, 331 Or 455, 17 P3d 1045 (2000) .......................... 107, 110, 115 State v. Luers, 211 Or App 34, 153 P3d 688 (2007), adh’d to as modified on recons, 213 Or App 389 (2007) .............................131 State v. Magee, 304 Or 261, 744 P2d 250 (1987) ............................................151 State v. Matt, 251 Or 134, 444 P2d 914, 915 (1968) ........................................151 State v. Mayfield, 302 Or 631, 733 P2d 438 (1987) .........................................191 State v. McAnulty, 356 Or 432, 338 P3d 653, 673 (2014) .................................. 95 State v. McBride, 287 Or 315, 599 P2d 449 (1980) .............................. 4, 54, 221 State v. McDonnell, 313 Or 478, 837 P2d 941 (1992) .....................................253 State v. McNeely, 330 Or 457, 8 P3d 202, cert den, 531 US 1055 (2000) ....................... 289, 290 State v. Meade, 327 Or 335, 963 P2d 656 (1998) ................................... 151, 154

xxiv

State v. Miller, 327 Or 622, 969 P2d 1006 (1998) ...........................................131 State v. Moen, 309 Or 45, 786 P2d 111 (1990) ................................................223 State v. Montez, 309 Or 564, 789 P2d 1352 (1990) ................................. 151, 240 State v. Moore, 324 Or 396, 927 P2d 1073 (1996) .. 222, 246, 251, 265, 274, 288 State v. Moore/Coen, 349 Or 371, 245 P3d 101 (2010) ...................................280 State v. Naylor, 291 Or 191, 629 P2d 1308 (1981) ................................... 60, 306 State v. 241 Or App 681, 251 P3d 240 (2011), rev dis’d, 354 Or 62, 308 P3d 206 (2012) ............................................... 53, 85 State v. Norton, 9 Or App 595, 497 P2d 680 (1972) ............................... 136, 138 State v. O’Key, 321 Or. 285, 899 P.2d 663, 672 (1995) .................. 210, 212, 216 State v. Ogden, 35 Or App 91, 580 P2d 1049 (1978) .............................. 304, 305 State v. Parkins, 346 Or 333, 211 P3d 262 (2009) ...........................................113 State v. Pinnell, 311 Or 98, 806 P2d 110 (1991) ..............................................134 State v. Pipkin, 354 Or 513, 316 P3d 255 (2013) ................. 104, 106, 111, 112, 113, 121, 122 State v. Plowman, 314 Or 157, 838 P2d 558 (1992), cert den, 508 US 974 (1993) .........................................................................270 State v. Poston, 277 Or App 137, 370 P3d 904 (2016) ....................................139 State v. Pratt, 316 Or 561,853 P2d 827 (1993) ....................................... 101, 134 State v. Quinn, 290 Or 383, 623 P2d 630 (1981) .... 255, 256, 257, 258, 259, 260 State v. Rhines, 548 N W 2d 415 (SD 1996) ....................................................227 State v. Rodriguez-Castillo, 210 Or App 479, 151 P3d 931 (2007), rev’d on other grounds, 345 Or 39 (2008) ...................................................108

xxv

State v. Rogers, 313 Or 356, 836 P2d 1308 (1992) ................................. 221, 293 State v. Scott, 343 Or 195, 166 P3d 528 (2007) ...............................................150 State v. Smith, 310 Or 1, 791 P2d 836 (1990) ......................................... 151, 173 State v. Snider, 296 Or 168, 674 P2d 585 (1983) .................................... 161, 183 State v. Sparks, 336 Or 298, 83 P3d 304, cert den, 543 U.S. 893 (2004) ........199 State v. Stevens, 311 Or 119, 806 P2d 92 (1991) ............................ 243, 244, 289 State v. Stuart, 250 Or 303, 442 P2d 231 (1968) ..............................................137 State v. Sweet, 46 Or App 31, 610 P2d 310 (1980) ..........................................122 State v. Terry, 333 Or 163, 37 P3d 157 (2001), cert den, 536 US 910 (2002) .......................................... 73, 148, 259, 260, 262 State v. 328 Or 248, 971 P2d 879 (1999) .......... 1, 221, 251, 265, 274 State v. Titus, 328 Or 475, 982 P2d 1133 (1999) .............................................191 State v. Vondehn, 348 Or 462, 236 P3d 691 (2010) .........................................149 State v. Wagner, 305 Or 115, 752 P2d 1136 (1988), rev’d and rem’d sub nom Oregon v. Wagner,492 US 914, 109 S Ct 3235, 106 L Ed 2d 583 (1989) (Wagner I) ............................ 249, 250, 260, 262, 263 State v. Wagner, 309 Or 5, 786 P2d 93 (1990) (Wagner II) ................................................................... 229, 275, 285, 286, 289 State v. Washington, 273 Or 829, 543 P2d 1058 (1975) ... 56, 220, 222, 227, 301 State v. Wedge, 293 Or 598, 652 P2d 773 (1982) ........... 256, 257, 258, 259, 261 State v. White, 15 Ohio St 2d 146, 239 NE2d 65 (1968) ..................................194 State v. White, 303 Or 333, 736 P2d 552 (1987) ............................... 79, 270, 288 State v. Wille, 317 Or 487, 858 P2d 128 (1993) ................................................. 57

xxvi

State v. Zolotoff, 354 Or 711, 320 P3d 561 (2014) .......................... 61, 63, 64, 67 Stranahan v. Fred Meyer, Inc., 331 Or 38, 11 P3d 228 (2000) .......................263 Tuilaepa v. California, 512 US 967, 114 S Ct 2630, 129 L Ed 2d 750 (1994) 249 Tumey v. Ohio, 273 US 510, 47 S Ct 437, 71 L Ed 749 (1927) .............. 174, 176 Turner v. State of La., 379 US 466, 85 S Ct 546, 13 L Ed 2d 424 (1965) ......... 94 Ungar v. Sarafite, 376 US 575, 84 S Ct 841, 11 L Ed 2d 921 (1964) .............177 United States v. Booker, 543 US 220, 125 S Ct 738, 160 L Ed 2d 621 (2005) ...................................229 United States v. Davis, 15 F3d 1393 (7th Cir 1994).......................... 99, 182, 204 United States v. Gipson, 553 F2d 453 (5th Cir 1977) ......................................115 United States v. Keating, 147 F3d 895 (9th Cir 1998) ....................................... 94 United States v. Murray, 618 F2d 892 (2d Cir 1980) .......................................124 United States v. Wilson, 32 US 150, 7 Pet 150, 8 L Ed 640 (1833) ........ 231, 238 Wainwright v. Witt, 469 US 412, 105 S Ct 844, 83 L Ed 2d 841 (1985) 240, 247 Walker v. Griffin, 218 Or 514, 346 P2d 367 (1959) .........................................239 White v. State, 2003 WY 163, ¶13, 80 P3d 642 (Wyo. 2003) ..........................193 Wike v. State, 648 So 2d 683 (Fla 1994)...........................................................292 Williams v. Pennsylvania, ___ US ___, 136 S Ct 1899, 195 L Ed 2d 132 (June 9, 2016) .............................................................................. 177, 178, 179 Witherspoon v. Illinois, 391 US 510, 88 S Ct 1770, 20 L Ed 2d 776 (1968) ...241 Withrow v. Larkin, 421 US 35, 95 S Ct 1456, 43 L Ed 2d 712 (1975) ............179

xxvii

Woodson v North Carolina, 428 US 280, 96 S Ct 2978, 49 L Ed 2d 944 (1976) ....................... 78, 226, 275 Zant v. Stephens, 462 US 862, 103 S Ct 2733, 77 L Ed 2d 235 (1983) .. 249, 271

CONSTITUTIONAL PROVISIONS AND STATUTES

US Const, Amend V ......................................... 9, 19, 69, 70, 140, 148, 149, 150

US Const, Amend XIV ..... 8, 11, 18, 19, 20, 21, 70, 92, 115, 116, 131, 140, 148,

162, 174, 184, 190, 194, 222, 223, 237, 239, 247, 253, 264, 267, 268, 269, 271, 273, 280, 282, 287, 291, 304, 307, 309

Or Const, Art I, § 9 ...................................... 13, 14, 201, 202, 203, 204, 205, 207 Or Const, Art I, § 11 ..... 18, 20, 93, 95, 108, 237, 239, 255, 256, 257, 261, 262, 263, 264, 284, 285 Or Const, Art I, § 12 .................................................... 9, 140, 148, 149, 150, 151 Or Const, Art I, § 16 .................................................................. 18, 264, 267, 273 Or Const, Art I, § 20 .......................................................... 18, 264, 267, 269, 273 Or Const, Art I, § 21 .......................................................... 18, 264, 267, 269, 273 Or. Const. Art I, § 40 .......................................................................................... 81 Or Const, Art VII (Amended), § 3 ........................................... 160, 182, 263, 287 Or Cosnt, Art VII (Amended), § 5 ....................................................................263 Or Const, Art VII, § 18 .....................................................................................264 Or Const. Art. XVII, § 1 ..................................................................................... 81 OEC 103(1) .............................................................................................. 160, 182 OEC 401 ........................................................................... 192, 193, 198, 199, 278

xxviii

OEC 402 ................................................................................... 160, 182, 191, 199 OEC 403 ..................................................................... 20, 191, 192, 193, 279, 280 OEC 404(3) .................................................................................. 8, 132, 133, 279 OEC 404(4) .............................................................................................. 279, 280 OEC 609-1(3)..................................................................... 10, 159, 160, 181, 182 ORS 19.430 ......................................................................................................... 92 ORS 132.560 ............................................................................ 129, 137, 138, 139 ORS 133.619(6) ................................................. 14, 201, 202, 203, 205, 206, 207 ORS 135.630(3) ....................................................................... 7, 8, 118, 120, 123 ORS 135.711 .....................................................................................................261 ORS 136.210(1) .................................................................................................. 95 ORS 136.432 .....................................................................................................207 ORS 136.440 .....................................................................................................187 ORS 136.460 .................................................................. 55, 61, 64, 303, 305, 309 ORS 136.465 .............................................................................................. 55, 306 ORS 136.535 ................................................................................................ 88, 92 ORS 136.535(1) .................................................................................................. 88 ORS 137.010(7) ................................................................................................234 ORS 137.106(4)(a) ................................................................................... 233, 236 ORS 137.473(1) ................................................................................................297 ORS 161.675(1) ............................................................................... 233, 234, 236

xxix

ORS 163.095 ...................................................................... 17, 246, 249, 250, 258 ORS 163.115 .....................................................................................................258 former ORS 163.116 ................................................................................ 256, 257 ORS 163.118(1)(a) .............................................................................................. 56 ORS 163.150(1)(b) .... 3, 18, 258, 264, 266, 267, 268, 270, 271, 273, 275, 278, 280, 284, 286, 289 ORS 164.205(3) ................................................................................................111 ORS 164.395 .................................................................................... 112, 113, 114 ORS 165.800 .....................................................................................................121 ORS 810.410 .....................................................................................................140

OTHER AUTHORITIES

International Covenant on Civil and Political Rights, Article 6 ...................................................................... 248, 249, 250, 252, 254 Or Laws 1909, p 12 ...........................................................................................262 Or Laws 1989, ch 842, § 1 ................................................................................137 OAR 291-024-0060 ................................................................................. 296, 298 OAR 291-024-0071 ..........................................................................................296 OAR 291-024-0080 ................................................................................. 296, 297 ORAP 5.45(6) .................................... 49, 103, 117, 124, 156, 188, 219, 237, 302 ORAP 12.10 ........................................................................................................ 90

xxx

ORCP 57 D(1)(g) ................................................................................................ 95 ORCP 64 A ......................................................................................................... 92 ORCP 64B ................................................................................................... 88, 92 ORCP 64 D ......................................................................................................... 92 ORCP 64(F) ........................................................................................... 89, 90, 92 ORCP 64 G ......................................................................................................... 92 Uniform Trial Court Rule 3.120 ..................................................... 84, 88, 90, 93 Commentary to Oregon Criminal Code of 1971 191, § 150 (1975 ed.) ...........114 “Lethal Injection for Execution: Chemical Asphyxiation?” Public Library of

Science Medicine, Vol 4, Issue 4 (April 2007) ............................................299 “So Long As They Die: Lethal Injections in the United States,” Human Rights

Watch Vol. 18, No. 1(G) (April 2006) ................................................ 299, 300 Benjamin Fleury-Steiner, Juror’s Stories of Death: How America’s Death

Penalty Invests In Inequality, 24-25 (2004) .................................................243 Brooke M. Butler & Gary Moran, The Role of Death Qualification in

Venirepersons’ Evaluations of Aggravating and Mitigating Circumstances in Capital Trials, 26 Law & Hum Behav 175, 183 (2002) ..............................243

Carla Ann Hage Johnson, Entitled to Clemency: Mercy in the Criminal Law, 10

Law and Philosophy 109 (1991) .......................................................... 230, 231 David Konstan, Clemency as a Virtue,100 Classical Philology 337 § 100.4

(2005) ............................................................................................................224 Department of Corrections, “Capital Punishment Facts,”

https://www.oregon.gov/doc/OC/pages/cap_punishment/cap_punishment.aspx#Misc__Capital_Punishment_Facts (last visited September 29, 2016) .....293

Edward Christian, Charges Delivered to Grand Juries in the Isle of Ely 283

(1819) ............................................................................................................231

xxxi

Helen Jung, Oregon Supreme Court denies death row inmate Gary Haugen’s bid for execution, Oregonian, June 20, 2013, http://www.oregonlive.com/pacific-northwest-news/index.ssf/2013/06/oregon_supreme_court_decision.html..................... 79

John B. Mitchell, Why Should the Prosecutor Get the Last Word?, 27 Am J

Crim L 139, 216 (2000) ................................................................................290 John Henry Wigmore, 2 Evidence § 304, 249 (Chadbourne rev. 1979) ..........135 Jonathan Cooper, Court upholds governor’s execution delay, Associated Press,

June 20, 2013, http://registerguard.com/rg/news/local/30050327-75/death-haugen-kitzhaber-governor-penalty.html.csp ................................................. 80

Justice John Paul Stevens, Remarks at the Thurgood Marshall Awards Dinner

(Aug 6, 2005), http://www.supremecourt.gov/publicinfo/speeches/viewspeeches.aspx?Filename=sp_08-06-05.html (last accessed September 18, 2016) .........................243

Kathleen Dean Moore, How to Distinguish Forgiveness, Mercy, and Pardons:

Justice, Mercy, and the Public Interest 181 (1989) ......................................224 Laird C. Kirkpatrick, Oregon Evidence § 702.04 5th ed (2007) ......................212 McCormick on Evidence 559–60, § 190 (3d ed 1984).....................................134 Mike Allen et al., Impact of Juror Attitudes About the Death Penalty on Juror

Evaluations of Guilt and Punishment: A Meta-Analysis, 22 Law & Hum Behav 715, 724-25 (1998) ............................................................................242

Mitchell Caldwell, Primacy, Recency, Ethos & Pathos: Integrating Principles

of Communication Into the Direct Examination, 76 Notre Dame L Rev 423 (2001) ............................................................................................................290

N.E. Simmonds, Judgment and Mercy, 13 Oxford J L Studies 52 (1993) .......230 Old and New Testament. Micah (King James) 6:8; Luke 6:36; Hebrews 2:17 230 Patricia McCune, The Ideology of Mercy in English Literature and Law, 1200-1600 (1989) .........................................................................................231

xxxii

Robert S. Wyer, Jr. & Thomas K. Srull, The Processing of Social Stimulus Information: A Conceptual Integration, in Person Memory: The Cognitive Basis of Social Perception, 38 J Personality & Social Psychology

227, 254 (1980) .............................................................................................290 Samuel T Morison, The Politics of Grace: On the Moral Justification of

Executive Clemency, 9 Buff Crim L Rev 1, 18-25 (2005) ...........................230 The Federalist 74 (Alexander Hamilton) .........................................................231 Wayne R. LaFave, 4 Search and Seizure § 1.5(c), 950-60 (5th ed. 2012) .......205 Webster’s Third New Int’l Dictionary (unabridged ed 2002) ... 82, 224, 229, 293 William J. Bowers & Wanda D. Foglia, Still Singularly Agonizing: Law’s

Failure to Purge Arbitrariness from Capital Sentencing, 39 Crim L Bull 51, 51 (2003) ...................................................................................... 242, 244, 245

William J. Bowers et al., The Capital Sentencing Decision: Guided Discretion,

Reasoned Moral Judgment, or Legal Fiction, America’s Experiment with Capital Punishment: Reflections on The Past, Present, and Future of the Ultimate Penal Sanction, 438 (James R. Acker et al. eds., 2d ed. 2003) .....245

William J. Bowers, The Capital Jury Project: Rationale, Design, and Preview

of Early Findings, 70 Ind L J 1043, 1101 (1995) .........................................242 William Yardley, Oregon Governor Says He Will Block Executions, New York

Times, November 22, 2011, http://www.nytimes.com/2011/11/23/us/oregon-executions-to-be-blocked-by-gov-kitzhaber.html .......................................... 76

APPELLANT’S OPENING BRIEF

STATEMENT OF THE CASE

Nature of the Proceeding

This case is an automatic and direct review arising from the death

sentence imposed on defendant. Defendant was sentenced to death on a single

conviction of aggravated murder based on three theories resulting from the

merger of three counts of that offense. He seeks reversal of the convictions and

sentences on all counts.

A copy of the indictment is attached at ER 11-17.

Nature of the Judgment

Defendant was charged with 31 criminal counts resulting from three

separate but related incidents.

Counts 1-11 relate to the June 8, 2012, robbery of the Creswell, Oregon,

branch of Siuslaw Bank. Counts 1-10 alleged one count of robbery in the first

degree and one count of robbery in the second degree for each of five victims

present in that bank: Catherine Jessica Donia

Courtney and Ana Count 11 alleged that defendant was a

felon in possession of a firearm.

Counts 12-17 relate to the August 3, 2012, murder and robbery of

Celestino Count 12 alleged kidnapping in the first degree. Count 13

2

alleged robbery in the first degree. Counts 14-17 alleged aggravated murder

based on following four theories of aggravation: that defendant previously

committed murder; that the instant murder was in the course and furtherance of

robbery and kidnapping; that the murder was committed in an attempt to

conceal the commission of the robbery in Count 12 or the identity of that

crime’s perpetrator or the identity of the perpetrator of the robbery alleged in

Count 19; and that the murder was committed in the course of intentional

maiming or torture. Count 18 alleged the crime of abuse of corpse.

Counts 19-31 relate to the August 3, 2012, robbery of the Siuslaw Bank

branch in Mapleton, Oregon. Counts 19-30 each constitute one count of robbery

in the first degree and two counts of robbery in the second degree for each of

four victims: Harley Mayfield, Kylie Quam, Brenda Gray, and Peggy

Simington. Count 31 alleged that defendant was a felon in possession of a

firearm.

Following a jury trial, defendant was found guilty of all counts with one

exception: on Count 17, aggravated murder alleging the intentional torture or

maiming of the victim, the jury found defendant guilty only of the lesser-

included offense of intentional murder.

3

The trial court held a penalty phase proceeding. The jury answered

“yes” to the statutory questions submitted to it pursuant to ORS 163.150(1)(b).1

At a sentencing hearing, the trial court merged Counts 12 and 13, the

kidnapping and robbery of Celestino It also merged each of the three

guilty verdicts for aggravated murder and the lesser-included guilty verdict for

intentional murder into a single conviction reflecting three theories of

aggravation. The court also merged each pair of robbery in the second degree

convictions for the Mapleton bank robbery, Counts 20-21, 23-24, 26-27, and

29-30.

A copy of the judgment is attached at ER 330-346.

Jurisdiction

This court has jurisdiction pursuant to ORS 138.012(1).

Questions Presented and Summary of Arguments2

First Question Presented (Assignments of Error 1-4): Did the trial court err by refusing to give defendant’s requested lesser-included offense instruction of manslaughter on each count of aggravated murder?

1 The court did not present the question raised in ORS

163.150(1)(b)(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.” Defendant did not request that that question be placed before the jury.

2 To eliminate the need to page back and forth, appellant’s counsel includes the summary of arguments immediately following the questions.

4

The trial court erred when it refused to provided defendant’s requested

lesser-included offense instruction of manslaughter on each of the four counts

of aggravated murder. A defendant is entitled to have her theory of the case

presented to the jury if there is evidence to support the theory. State v. Brown,

306 Or 599, 603-04, 761 P2d 1300 (1988) (citations omitted). A trial court does

not have discretion to refuse to instruct a jury on a defense theory if (1) the

instruction is an accurate statement of law and (2) defendant presented evidence

to support the required elements of the instruction. State v. McBride, 287 Or

315, 319, 599 P2d 449 (1980). In determining whether the evidence supports

giving a particular instruction, a reviewing court views the evidence “in the

light most favorable to the party offering the jury instruction.”.” State v. Beck,

269 Or App 304, 309, 344 P3d 140, 143 (2015), rev den, 357 Or 164 (2015).

Here, in the light most favorable to giving the instruction, there was

evidence to support defendant’s manslaughter theory. Even under the state’s

theory defendant was only one of three participants in the murder. The state

relied on the testimony of an interested party – co-defendant Mercedes Crabtree

– to establish the precise timeline of the night the victim was murdered. The

jury was entitled to disbelieve some or all of that evidence and conclude merely

that defendant recklessly allowed dangerous people – Crabtree and AJ –

access to his home and to the victim. The jury could have concluded that

defendant participated in a scheme to rob the victim – taking his car – but that

5

he did not intend the murder to result. These were permissible inferences from

the evidence that the jury could have drawn in the light most favorable to giving

the instruction. Accordingly, the trial court erred when it refused to provide that

instruction and defendant is entitled to a new trial.

Second Question Presented (Assignments of Error 5 and 6): May a trial court impose a sentence of death during the pendency of a statewide moratorium on carrying out executions.

The trial court erred by imposing a death sentence on defendant during

Oregon’s moratorium on carrying out the death penalty. Despite the trial court’s

instructions to the jurors to assume that their sentence would be carried out, a

reasonable person would find the moral gravity of his or her decision making to

be compromised by the knowledge that the chief executive of the State of

Oregon will not carry out capital punishment. Moreover, the trial court erred

when it rejected defendant’s request that it strengthen the language of that

instruction to ensure that the jury understood the awesome decision that it was

required to make.

Third Question Presented (Assignment of Error 7): Has the state met its burden of proving that juror misconduct was not prejudicial, when some of the jurors could not remember whether the misconduct affected the verdicts?

A criminal defendant is entitled to a new trial when juror misconduct

affected the verdict. The state has the burden of proof as to whether juror

misconduct was prejudicial.

6

Here, after the entry of judgment, the trial court learned that an alternate

juror had sent an email before trial stating that she had learned extrajudicial

information about the case through her work as a clerk at the trial court. The

alternate stated in the email that defendant “needs to die.” During voir dire, she

lied to the court by denying that she had learned extrajudicial information or

had formed an opinion about the case. When her misconduct came to light and

the court questioned the jurors about it, some could not remember whether the

alternate had spoken to them about the case. Accordingly, the state failed to

meet its burden of proving that juror misconduct did not affect the verdicts, and

the trial court erred by denying defendant’s motion for new trial.

Fourth Question Presented (Assignments of Error 8-30): Was the trial court required to provide an instruction requiring the jury to concur on a specific theory of robbery for each count of that offense?

The trial court erred in failing to give a jury concurrence instruction for

each of the 23 counts of robbery alleged by the state. On every one of those

counts, the state alleged two ways in which defendant could have committed

robbery. That he acted with the intent of (1) preventing or overcoming

resistance to taking property or (2) compelling the owner of the property, or

another person, to deliver the property or engage in conduct to aid in the

commission of theft. Over defendant’s objection, the trial court failed to instruct

the jury that it must concur on either or both theories for each robbery count.

7

Both the Oregon Constitution and the United States Constitution require

jurors to agree on the facts constituting the crime in order to convict a

defendant. Here, the trial court erred in not instructing the members of the jury

that must concur on which of the two theories of robbery they found defendant

guilty.

Fifth Question Presented (Assignments of Error 31-33): Did the trial court err when it failed to grant defendant’s demurrers to Count 12, kidnapping, and Counts 15 and 16, aggravated murder, on the basis that each count improperly charged multiple offenses?

In each of Counts 12, 15, and 16, the state charged multiple offenses. In

Count 12, the state charged defendant with two different types of kidnapping.

Because the kidnappings have different elements they are separate offenses.

Because each of those offenses was contained within a single count, the charges

were not separately stated ORS 135.630(3).

Counts 15 and 16 similarly charged multiple offenses. In Count 15, the

state charged defendant with murder committed in the course of committing

kidnapping in the first degree as alleged in Count 2 or robbery in the first

degree as alleged in Count 13. Similarly, in Count 16, the state charged

defendant with a variety of theories of aggravated murder: one committed in an

effort to conceal a kidnapping, one for attempting to conceal a robbery of

Celestino and one for concealing a variety of crimes resulting from

the robbery of Siuslaw Bank. Because each of those offenses is contained

8

within a single count the charges are not separately stated ORS 135.630(3).

The trial court erred when it failed to grant defendant’s demurrer.

Sixth Question Presented (Assignments of Error 34 and 35): Was defendant deprived of the right to a fair trial when the trial court declined to sever various charges alleging different criminal incidents?

Defendant was charged in a single indictment with crimes that occurred

over a period of several months. The indictment alleged a bank robbery that

occurred in June of 2012 and a subsequent kidnapping, robbery, murder, and

separate bank robbery in August of 2012. The trial court should have dismissed

the indictment or, in the alternative, granted defendant’s motion to sever and

allowed him to try those charges separately.

Joinder of separate offenses violates the due process guaranteed by the

Fourteenth Amendment to the United States Constitution if it renders

petitioner’s trial fundamentally unfair. The risk of undue prejudice may arise

when the evidence substantiating the separate offenses would not be cross-

admissible had the counts been tried separately. In this case, failure to grant

defendant’s demurrer or sever the trial of the separate incidents substantially

prejudiced defendant by depriving him of the protection of a provision of the

Oregon Evidence Code, specifically, OEC 404(3). In so doing, it rendered

defendant’s trial fundamentally unfair in violation of due process.

9

Seventh Question Presented (Assignment of Error 36): Must a trial court suppress statements a criminal defendant made upon being interrogated after invoking his right to counsel?

Article I, section 12, of the Oregon Constitution and the Fifth

Amendment to the federal constitution both protect against compelled self-

incrimination. Here, the trial court first erred when it determined that

defendant’s first invocation of his right to counsel was equivocal. That

invocation took place when a detective asked defendant to identify photographs

of people and defendant responded, “Need a lawyer. I … I … these are friends

of mine god damn it.” This statement requires no interpretation.

The trial court determined that this invocation was “conditional and

therefore equivocal” based on the “totality of the circumstances.” That

determination was erroneous because the trial court relied on aspects of the

interaction that occurred after defendant’s invocation. A court may not use

statements after an invocation to find that the earlier invocation was equivocal.

Even if the invocation had been equivocal, the statements would still require

suppression because the officer did not immediately seek to clarify the nature of

defendant’s invocation, but instead engaged in further rapport-building dialogue

with defendant before merely cursorily asking if he wished to continue speaking

without an attorney.

Defendant was harmed by the trial court’s error. Defendant went on to

make incriminatory statements including offering a timeline of the day of the

10

murder, acknowledging the co-defendants’ presence in his home, and making

a statement that the state used as the opening line of its guilt-phase closing

argument. The trial court’s error requires a new trial.

Eighth Question Presented (Assignments of Error 37 and 38): May a prosecutor elicit evidence that a state’s witness has entered a plea which requires her to testify truthfully?

Mercedes Crabtree, a participant in the murder and one of the state’s key

witnesses, was asked a series of questions about her interactions with police,

her criminal charges, her guilty plea, and finally, whether the plea-deal required

her to testify truthfully. Although defendant interrupted with an objection

before she answered that question, the context of the exchange demonstrated to

the jury that her answer would be “yes,” that she was required to testify

truthfully. That was not evidence that tended to support or rehabilitate her

credibility under OEC 609-1(3) and was therefore irrelevant. The trial court’s

error was prejudicial.

Ninth Question Presented (Assignments of Error 39 and 40): Did the trial court engage in impropriety, or create an appearance of impropriety, such as to require a mistrial or an independent judge to consider the court’s recusal when it allowed Crabtree’s attorney to spend the night at the court’s home during trial?

The trial court disclosed to the parties that Steve Gorham, Mercedes

Crabtree’s attorney, spent the night at the trial judge’s home at his invitation

during voir dire. Defendant asked that the trial court recuse itself or grant a

mistrial in light of the mid-trial visit from the attorney for one of the state’s key

11

witnesses. The state requested that, given the nature of this case, the court at

least allow an independent judge – such as the presiding judge – to rule on the

matter of recusal. The trial court denied the motion for mistrial and declined to

allow a third-party to rule on whether recusal was warranted.

The Due Process Clause of the Fourteenth Amendment guarantees a

defendant the right to a fair trial before an impartial judge. In a capital case, due

process demands that a trial court avoid bias, partiality, or even the appearance

of impropriety. Here, the trial court should have granted a mistrial upon the

revelation that an attorney for an adverse witness stayed at his home during the

trial. At the very least, to avoid the appearance of impropriety and the danger of

bias, the court was required to allow an independent judge to consider recusal –

a step urged not by defendant, but by the prosecutor. Because the court failed to

take even that minimal step, defendant is entitled to a new trial.

Tenth Question Presented (Assignment of Error 41): Did the trial court err when it denied defendant’s “vouching” objection during testimony?

During Wretha testimony, shortly after she described the

immunity agreement the state had given her, the state prompted her to note the

oath she had taken to tell the truth and that she took the oath seriously.

Defendant objected and asserted that her testimony constituted vouching. As

with Crabtree’s testimony regarding her plea deal, the exchange with

constituted impermissible vouching raising a risk that the jury

12

might give special credence to her testimony. The trial court erred in

overruling defendant’s objection.

Eleventh Question Presented (Assignments of Error 42-68): Was there sufficient evidence to support defendant’s criminal convictions?

Even considering all evidence in the light most favorable to the state, the

trial court erred in denying defendant’s motion for judgment of acquittal. There

was insufficient evidence to support defendant’s convictions beyond a

reasonable doubt.

Twelfth Question Presented (Assignments of Error 69-84): Did pictures of the victim, a video of the victim at the Brew and Cue bar, and testimony form the victim’s mother constitute victim impact evidence, rendering it inadmissible during defendant’s guilt phase?

During the guilt phase of defendant’s trial, the state introduced

photographs of the victim, a video from the Brew and Cue bar containing

images of the victim, and testimony from the victim’s mother about his personal

characteristics. That evidence constituted impermissible victim-impact

evidence. Even if that evidence might have been admissible during the penalty

phase proceeding, it had an effect on the analytically distinct inquiry into

defendant’s liability for aggravated murder. What the jury learned about

and his family and friends’ losses did not make it more or less likely

that defendant was guilty. Yet, the evidence undoubtedly had an improper

emotional impact on the jury. Either because the evidence was not relevant or

13

because the unfairly prejudicial impact of the evidence grossly outweighed

its probative value, the trial court erred in admitting the evidence.

Thirteenth Question Presented (Assignment of Error 85): Was involvement in an earlier murder in Colorado relevant?

The state moved in limine to exclude “any questions about Mr.

conduct or involvement in a murder case for which he received immunity to

testify. He actually testified in a drive-by shooting in Colorado, unrelated

entirely to this event.” Over defendant’s objection, the trial court granted the

state’s motion. That was error.

The evidence of involvement in a prior murder in Colorado was

relevant to support defendant’s theory of the case – that was the primary

actor behind the murder of the victim. It would have tended to disprove the

state’s theory that defendant was the central figure, the ringleader and chief

planner, behind the crimes. Further, given the centrality of the question of

role, defendant’s Due Process rights to a fair trial were denied by the

trial court’s evidentiary ruling.

Fourteenth Question Presented (Assignment of Error 86): Under Oregon law, a warrant to use a tracking device requires probable cause that someone is committing or is about to commit a crime. Is a federal warrant that does not satisfy that requirement a valid warrant under Article I, section 9?

In an Oregon prosecution, evidence is subject to suppression if it was

obtained in a search that violated Article I, section 9. With certain exceptions, a

14

search violates Article I, section 9, unless it is conducted under the authority

of a valid warrant. A warrant is valid under Article I, section 9, only if it was

issued according to the requirements of ORS Chapter 133, which governs the

issuance of warrants. In particular, ORS 133.619(6) provides that a court may

issue a warrant for the use of a tracking device only upon a showing of probable

cause that someone is committing or about to commit certain crimes.

Here, the police used a tracking device on the basis of a federal search

warrant, but the warrant affidavit did not satisfy ORS 133.619(6), because it did

not show probable cause that someone was committing or about to commit a

crime. Consequently, for purposes of Article I, section 9, the warrant was

invalid, the search was unconstitutional, and the evidence derived from it was

subject to suppression.

Fifteenth Question Presented (Assignment of Error 87): Did the trial court properly take judicial notice of facts establishing the scientific validity of evidence derived from the tracking devices?

Because of its special persuasive authority, a court may admit scientific

evidence only if the evidence meets a threshold standard of scientific validity.

The court must make that determination on the basis of foundational evidence,

except in a “clear case” or a case in which the court takes judicial notice of facts

establishing the evidence’s scientific validity.

15

Here, the state offered scientific evidence derived from its use of the

tracking devices. The devices worked by (1) receiving information transmitted

from GPS satellites, (2) computing their location based on that information, (3)

transmitting their location via the cellular phone infrastructure to the FBI’s

computers, which (4) sent their location to the user. The state’s foundational

evidence was inadequate, in large part because important information about

how the devices worked was privileged under federal law. Instead, the trial

court determined that the evidence was scientifically valid by taking judicial

notice of the ubiquity and reliability of GPS technology. But even if GPS

technology, in general, is scientifically valid, that did not show that evidence

derived from the tracking devices was valid, because they rely on other

technology, as well, about which the court had little or no information. Because

the record did not establish the scientific validity of the evidence derived from

the tracking devices, the trial court erred by admitting it.

Sixteenth Question Presented (Assignment of Error 88-89): Did the trial court err by denying defendant’s requested mercy jury instructions?

In its ordinary and legal sense, “mercy” is distinct from “sympathy,” and

is a proper consideration for capital juries. Oregon’s capital scheme asks the

jury to answer the question of whether a defendant “should” receive a death

sentence by engaging in reasoned moral deliberation. Mercy is a component of

such moral deliberation. Further, defendant requested an instruction that would

16

have made clear to the jury that they should consider mercy that flowed from

the evidence. The instructions as a whole were proper and should have been

given.

Seventeenth Question Presented (Assignment of Error 90): May a trial court order an incarcerated defendant to immediately pay restitution in the absence of express findings that the defendant had assets to pay all or part of the ordered amount?

The trial court lacked authority to order that defendant immediately pay

restitution. The court had authority to order defendant—an incarcerated

person— to repay fines, fees, and costs during his term of incarceration only if

it first found that defendant has assets to pay all or parts of the amounts ordered.

Because the court made no such finding, it lacked authority to order defendant

to pay restitution while incarcerated.

Eighteenth Question Presented (Assignments of 91-122): Does the process of “death qualifying” a jury deprive a defendant of his constitutional rights to an unbiased jury and a jury comprised of a fair cross-section of the community?

Although the United States Supreme Court has upheld the use of death

qualification in past cases, the Court based its ruling in part on the fact that it

found the social science studies cited by the defense to be fundamentally

flawed. Recent studies have addressed and cured the problems identified by the

court. Those studies confirm that death qualification results in juries that are

more likely to convict and much more likely to impose the death penalty upon

conviction. As such, the death qualification process employed in the present

17

case deprived defendant of his rights to an unbiased jury and to a jury

comprised of a fair cross-section of the community, guaranteed by the Oregon

and federal constitutions, and to due process of law under the federal

constitution.

Nineteenth Question Presented (Assignment of Error 123): Do ORS 163.095 and ORS 163.150 violate the Eighth Amendment because they fail to provide a rational way to distinguish those persons subject to the death penalty?

To comply with the requirements of the Eighth Amendment, a state’s

death penalty scheme must provide a rational way to distinguish those persons

who are subject to the death penalty from those who are not. Oregon

purportedly narrows the class of death-eligible defendants by identifying

discrete categories of murder for which the death penalty may be imposed.

However, the legislature has designated so many classes of conduct as being

eligible for the death penalty that very few murders do not fit within at least one

of the categories. Because all but a few murderers are eligible for the death

penalty, ORS 163.095 does not genuinely narrow the class of persons eligible

for the death penalty.

Twentieth Question Presented (Assignment of Error 124): Does the fact that Oregon’s death penalty scheme grants District Attorneys unbridled discretion over who is charged with aggravated murder mean that the death penalty scheme permits arbitrary application of the punishment?

18

The fact that there are no statewide standards or central reviewing

body to ensure that the death penalty is applied fairly and consistently means

that the state imposes its severest punishment arbitrarily.

Twenty-First Question Presented (Assignment of Error 125): May a trial court permit the capital prosecution of a defendant when the indictment does not allege the facts necessary for a death sentence under ORS 163.150?

No. The statutory scheme effectively creates the crime of capital

aggravated murder under ORS 163.150(1). Thus, Article I, section 11, requires

the facts necessary to authorize a death sentence to be alleged in the indictment.

Twenty-Second Question Presented (Assignment of Error 126): Is ORS 163.150(1)(b)(B) (the “second question”) unconstitutional on its face under the Sixth, Eighth, and Fourteenth Amendments to the United States Constitution and Article I, sections 16, 20, and 21, of the Oregon Constitution?

ORS 163.150(1)(b)(B) requires the jury to find beyond a reasonable

doubt that “there is a probability that the defendant would commit criminal acts

of violence that would constitute a continuing threat to society.” The second

question is unconstitutional on its face under the Sixth, Eighth, and Fourteenth

Amendments, and the, and Article I, sections 16, 20, and 21, because it provides

for proof less than beyond a reasonable doubt, is vague, fails to narrow the class

of persons eligible for the death penalty, violates a defendant’s right to juror

unanimity, and asks the jury to find a probability beyond a reasonable doubt.

19

Twenty-Third Question Presented (Assignment of Error 127): Is ORS 163.150 (the “fourth question”) facially unconstitutional under the Fifth, Sixth, Eighth, and/or Fourteenth Amendments to the federal constitution because (a) it permits the state to present any aggravating evidence; and/or (b) it fails to provide adequate guidance to the jury concerning how to evaluate such evidence?

ORS 163.150(1)(a) authorizes the trial court to admit any aggravating

evidence “relevant” to the fourth question, without imposing any requirement

that the evidence satisfy any other rule of evidence, without requiring the state

to identify the “aggravating fact” that the aggravating evidence is offered to

prove, without providing any guidance to the jury as to how it is to assess the

aggravating evidence, and without requiring the state to prove any

corresponding fact beyond a reasonable doubt or by any other standard of proof.

As such, the statute is unconstitutional under the Fifth, Sixth, Eighth, and/or

Fourteenth Amendments.

Moreover, the Oregon legislature has expanded the evidence admissible

on the fourth question to include not only the kind of victim impact evidence

prohibited by the Supreme Court in Payne v. Tennessee, 501 US 808, 822, 111

S Ct 2597, 115 L Ed 2d 720 (1991), but also evidence as to any matter that the

court deems relevant to sentencing. That goes well beyond the victim impact

evidence that the Payne Court deemed permissible counterbalancing evidence

to mitigating evidence concerning a defendant’s personal circumstances and the

circumstances of the current crime. As such, Oregon’s death penalty scheme

20

allows the jury to consider improper evidence and violates the Eighth and

Fourteenth Amendments to the federal constitution.

In addition, ORS 163.150 violates the Eighth Amendment by permitting

a capital jury to disregard mitigating evidence altogether, and by permitting

non-specific aggravating factors to the fourth question, thereby precluding

meaningful appellate review of the death sentence. The statute violates the

Sixth Amendment because it allows the imposition of a death sentence based on

evidence without a jury finding of any fact beyond a reasonable doubt. In

addition, ORS 163.150 allows the imposition of a non-unanimous death

sentence in violation of Article I, section 11, of the Oregon Constitution and the

Sixth Amendment to the United States Constitution.

In Payne, the Supreme Court approved the admission of victim impact

evidence in the penalty phase of a capital trial because trial courts would

exclude evidence that is “so unduly prejudicial that it renders the trial

fundamentally unfair.” Thus, the Eighth Amendment requires a balancing test,

similar to that set out in OEC 403, for all aggravating evidence admitted during

the penalty phase, even other bad act evidence governed by OEC 404.

Twenty-Fourth Question Presented (Assignment of Error 128): Does permitting the state to present two closing arguments in favor of the death penalty and defendant only one deprive defendant of due process and a reliable, impartial sentencing hearing?

21

At the penalty phase of the trial, the state bears the burden of proving

beyond a reasonable doubt three questions relevant to the determination of

punishment. But neither party has the burden of proof on the fourth question

(whether the defendant should receive a sentence of death). Because the state

does not bear the burden on that question and the need for scrupulous regard for

impartiality and fairness in the penalty phase of a capital trial, the state is not

entitled to rebuttal argument on the fourth question. Allowing the state an

“extra” argument on the fourth question violates the Due Process Clause of the

Fourteenth Amendment and the right against cruel and unusual punishment

guaranteed by the Eighth Amendment.

Twenty-Fifth Question Presented (Assignment of Error 129): Does Oregon’s execution protocol violate the Eighth Amendment’s prohibition against cruel and unusual punishment?

In Baze v. Kentucky, the United States Supreme Court upheld Kentucky’s

execution protocol against an Eighth Amendment challenge based on the fact

that Kentucky’s protocol includes several safeguards to ensure that the lethal

drugs are properly injected and that the prisoner not suffer as a result of the

procedure. Oregon’s protocol does not include those safeguards. Unlike

Kentucky, Oregon does not require the persons preparing and administering the

lethal drugs to have a minimal level of medical expertise or training in the

procedure. In addition, Oregon’s protocol has no provisions for backup IVs, or

contingent procedures to remedy an execution that does not go as planned.

22

Without those safeguards, the Oregon protocol violates the Eighth

Amendment to the federal constitution as cruel and unusual punishment.

Twenty-Sixth Question Presented (Assignments of Error 130-131): Did the trial court err by giving the jury an “acquittal first” jury instruction?

The acquittal-first instruction violates the United States Constitution. An

instruction that requires a jury to determine guilt or innocence in a capital case

without consideration of a lesser-included offense coercively distorts the fact-

finding process. The error is the same as when a court fails to instruct a jury on

a lesser-included offense altogether. In such situations, the error necessarily

affects the jury’s consideration of the evidence and requires a new trial.

Summary of Facts3

In his summary of facts, defendant provides the evidence in the light

most favorable to the state. State v Cunningham, 320 Or 47, 49, 880 P2d 431,

(1994). In the argument section below, defendant augments this summary when

warranted by differing standards of review.

3 The transcript in this case contains pagination errors. The transcript

was produced in segments by three transcriptionists and the creator of the third volume repeated page numbers that appear at the end of the second volume beginning at page 4582. In addition, the proceedings of May 1, 2014, were separately transcribed and are separately paginated. Finally, the 2015 hearings related to the misconduct of alternate juror Moser are a separate volume and are separately paginated. Defendant will refer to the main transcript with citations to “Tr.” and will include a date in the citation when necessary to avoid ambiguity or to refer to the 2015 hearings.

23

I. Facts relevant to the guilt phase A. Background

Defendant met Wretha in November of 2010 when he

volunteered with her employer, St. Vincent de Paul. Tr. 4694. The two began

dating. 4697. who was 33 years old at the time of trial, lived in a

Duplex at 44 Lea Avenue in Eugene. Tr. 4695. She had five children. Tr. 4693.

She owned a grey Dodge Intrepid and a red Dodge Caravan. Tr. 4697.

Defendant worked for a time at a bagel shop and helped with her

rent. Tr. 4699. Although defendant never lived with her, he spent quite a bit of

time at her home. Tr. 4699.

B. The Creswell bank robbery In June of 2012 defendant and drove around looking for

banks to rob before ultimately casing the Siuslaw Bank branch in the small

town of Creswell. Tr. 4700-01. Defendant’s friend Toni and

niece, Mercedes Crabtree, came from the Portland area to participate in the

robbery. Tr. 4702-04. At the time, Crabtree was 18 years old and about to

graduate high school. They drove to Eugene on June 8, 2012, first going to

defendant’s home on Jessen Street before decamping to home

the day before the robbery. Tr. 4705-06.

The next morning, defendant, and Crabtree headed to the bank

from home in blue SUV and red Dodge

24

Caravan. Tr. 4710. They brought along a bicycle from house.

Tr. 4711. Defendant’s planned to ride the bicycle into the bank, rob it, and then

cycle back to the waiting red Caravan. Tr. 5013. Defendant covered his face

and carried a small pink revolver and a larger silver revolver. Tr. 5012.

Crabtree drove the red van, with defendant her passenger, and

drove her car. Tr. 5013. Crabtree parked near the bank and

defendant cycled to the door. Tr. 5013.

Catherine the manager of that Siuslaw Bank Branch, was

working with several other employees when defendant came in, covered from

head to toe. Tr. 3892. He carried a handgun in each hand, and knew

immediately that the bank was being robbed. Tr. 3893. Defendant yelled for

everyone to get down and to give him their money. Tr. 3894. He demanded that

the employees give him their wallets and purses and said that if he was given a

dye bomb or a tracking device he would know where to find them. Tr. 3896. As

approached defendant with her purse he waved the gun and told her to

hurry up and began counting aloud. Tr. 3898. She gave defendant her purse and

he placed it in a bag. Tr. 3903. He told the occupants of the bank not to move

for one minute after he left. Tr. 3903. did not attempt to give defendant

any tracking devices or dye bombs. Tr. 3897. Surveillance video captured the

robbery. Tr. 3929.

25

Courtney Rose worked as a teller. Tr. 3962. When defendant

demanded purses and wallets, she hid hers under the desk. Tr. 3966. She

removed her engagement ring to keep it safe. Tr. 3966.

Teller Donna Barkmeyer first briefly thought that the camo-clad man

might be joking. Tr. 3944. She saw him wielding two guns and heard him order

everyone down. Tr. 3945. Defendant ordered her to open a till and she

responded that she did not have keys for that particular drawer and showed him

which one was hers. Tr. 3947. She opened her drawer and gave him cash,

believing that he would kill her if she did not. Tr. 3948.

Customer Glen Parker saw defendant put clerk Ana on the

ground, pull the hammer back on one of his guns, point it at her head, and count

down. Tr. 4043. Another clerk ran up with her purse and defendant released

Tr. 4045. Parker observed that defendant appeared to have a .357

magnum and a “.38 special.” Tr. 4044.

Bank customer Jacob Daniels, an attorney visiting to have some

documents notarized, lifted his head and looked around. Tr. 3994. Defendant

pointed a gun at him and vehemently ordered him to put his head back on the

ground, which he did. Tr. 3994.

Daniels was accompanied by his clients, William and Karyl Speicher,

and their witnesses, Mary and Tom Foust. Tr. 4019. On his way into the bank,

Tom Foust saw defendant headed in at speed on a bike. Tr. 4019. Believing that

26

the bank was about to be robbed, Foust stayed in the parking lot and called

911, telling an operator that he believed a robbery was in progress. Tr. 4020.

Another would-be customer, James McGrew, arrived at the bank and

encountered Foust, who told him not to go in and that the bank was being

robbed. Tr. 4033. McGrew looked around for a pipe or something else to use as

a weapon, but soon saw defendant biking away from the scene. Tr. 4034.

Defendant took about $9,000. Tr. 3907. After he left the bank, Rose

retrieved her keys form her purse and locked the door. Tr. 3972.

Lane County Sheriff’s Deputy Charles Douglass was dispatched to the

Siuslaw Bank at 10:24 a.m., arriving 10-15 minutes later. Tr. 4049. After a brief

conversation with a man who fit the initial description of defendant, but who

proved to be uninvolved, Douglass discovered the bicycle used in the robbery

about 500 feet from the bank. Tr. 4050. He then surveyed the area looking for

businesses with surveillance cameras that might have caught the participants, he

eventually received videos from the Cascade Home Center and the Emerald

Valley Armory. Tr. 4053, 4058. Viewing those videos, Douglass observed a

metallic red Chrysler van which a person approached on foot. Tr. 405. The

Armory video showed that the van was parked in an alley near the bank at

10:18 a.m. Tr. 4058.

Crabtree had parked behind a building near a dumpster. Tr. 5014. After

the robbery, defendant rode to the van, leaving the bicycle behind. Tr. 5015.

27

Defendant had a black backpack containing what he took from the bank. Tr.

5015. Crabtree drove defendant to a meeting spot where was waiting in

her car. Tr. 5016. Defendant removed the stolen money from the backpack and

placed it in a water-filled cooler that he had left in the van, in an apparent effort

to defeat any tracking devices. Tr. 5019. and Crabtree got into

car, into which defendant placed the cooler. Tr. 5016. Defendant then drove the

red van, and all three traveled to defendant’s house. Tr. 5019.

There, met the trio and helped them transfer money into a

water-filled bathtub. Tr. 5017. After soaking the money in the tub, they placed

the bills in the dryer before splitting up the money – Crabtree received $1,000.

Tr. 5020. Crabtree and returned to Portland where she attended a

barbeque at her grandmother’s house in honor of her high school graduation.

Tr. 5020.

Lane County Sheriff Detective Stephen Simons was the lead investigator

on the Creswell robbery. Tr. 4132. Having obtained the video showing the red

Chrysler van, he printed out still images of that vehicle and brought them to

various dealerships to try to identify the precise model. Tr. 4134. One dealer

identified it as a 1999 or 2000 Inferno red Dodge Caravan. Tr. 4135. Reviewing

records, the police determined that one such vehicle was associated with the

address 44 Lea Avenue in Eugene, and was registered to Linda

Tr. 4136.

28

On July 30, 2012, pursuant to a federal search warrant, the FBI placed

tracking devices on two vehicles associated with defendant – the red Dodge

Caravan and the silver Dodge Intrepid. Tr. 4165-67. Thereafter, the trackers

provided the authorities with information about the vehicles’ whereabouts. Tr.

4170.

C. The Murder of Celestino .4 In June of that summer, defendant yelled at a passing driver to slow down

from the upper floor of home. Tr. 4734. From there, defendant

jumped to the ground, breaking his heels. Tr. 4734. took him to

the hospital, and he received casts on both legs. Tr. 4736. Defendant stated in

an interview with police officers that he broke his legs on June 6, 2012. Ex. 1,

Trial Court File. However, Dr. Daniel V. Sheerin treated defendant on June 11,

2012, and understood the injury to have occurred on June 10, 2012, the

previous day. Tr. 4497.

By late July, defendant could walk without a medical boot, but not well.

– his mobility was limited. Tr. 4739. Nevertheless, was aware that

defendant planned to carry out another bank robbery in early August. Tr. 4740.

Defendant and observed the target, another Siuslaw bank branch,

4 The description of the murder itself came through the testimony to

Mercedes Crabtree, who pleaded guilty to murder and robbery and received a life sentence with the possibility of parole after 30 years. Tr. 5004, 5148.

29

this time in the town of Mapleton. Tr. 4740. They drove

Intrepid to scope it out. Tr. 4740.

There were two obstacles to the next bank robbery: Defendant’s injury

was still limiting his mobility, and he was aware that surveillance cameras had

captured the Dodge Caravan, the vehicle having been shown on news

broadcasts. Tr. 4744, 4747.

To assist with the robbery, Crabtree would join again, and this time

would bring her friend, A.J. Tr. 4743. was a longtime friend of

Crabtree’s – she had met him skating at Oaks Park when she was 11. Tr. 5025.

Like defendant, was a military veteran. Tr. 5028. His role in the robbery

would be to assist defendant because defendant, hobbled by the injury, could

not go into the bank alone. Tr. 5028.

Defendant purchased a car from Toni husband, James Tr.

5023. Crabtree and drove from the Portland area in that car, a black

Celica. Tr. 5024. Once they arrived in Eugene, defendant drove them in the

Dodge Intrepid to Mapleton to case the bank and discuss the plan. Tr. 5034.

They returned to Eugene and home. Tr. 5036. There, they set to

work preparing, wiping down the bullets and guns they planned to use and

taking the VIN plates off of the Celica. Tr. 5037. They did the latter in the

garage at the Jesson Street residence. Tr. 5044. Ultimately on the morning of

30

August 2 defendant, and Crabtree left for the bank – defendant and

in the black Celica, and Crabtree in the Intrepid. Tr. 5045.

On the way to the bank, however, the black Celica broke down. Tr. 5046.

Defendant was angry, kicking the car’s tires and swearing. Tr. 5047. They went

back to leaving the Celica behind, and defendant told Crabtree

to come up with a $1,000 so they could obtain a replacement car. Tr. 5047. She

tried to do so, calling several friends, but failed. Tr. 5047-48.

They discussed stealing a car. Tr. 4757. Defendant told the group that

they would have to kill someone to obtain a car and avoid having it reported

stolen before the robbery. Tr. 4757. suggested that they try to find

a car at a campsite. Tr. 4758. Acting on that suggestion, defendant and

left in the Intrepid. Tr. 4758. Crabtree stayed home, and the two women

watched television before falling asleep. Tr. 4760-61.

Defendant and returned late at night, finding Crabtree and

asleep in the same bed. Tr. 4761. Defendant was angry that the

front door was unlocked. Tr. 4761. He told the women that they could not find a

person who was alone and without children at the campground. Tr. 4763.

Instead, defendant said they should find a person at the nearby Brew and Cue

bar and told Crabtree to get “dolled up.” Tr. 4762-64. She changed into clothes

borrowed from and put on makeup. Tr. 5051.

warned defendant that the Brew and Cue was a little close to home, but no one

31

voiced any moral misgivings. Tr. 4765. She gave defendant $20 to purchase

drinks and he, Crabtree, and left. Tr. 4766.

On the way to the bar, defendant told and Crabtree to stage a fight

in front of the bar to attract the attention of a patron and bring that person to

defendant’s house. Tr. 5053. Crabtree protested and defendant grabbed her hair,

hit her head on the car window, and asked her if she “valued [her] breath.” Tr.

5053. She acquiesced. Tr. 5053. Defendant continued that she was to tell

someone that she and her “boyfriend,” had gotten in a fight and to ask

for a ride home. Tr. 5054.

When they arrived, defendant went alone into the bar. Tr. 5055. He

exited about ten minutes later, and and Crabtree drove him back to his

house. Tr. 5056. On the way there, defendant told them to look for a single

man. Tr. 5056. drove himself and Crabtree back to the bar. Tr. 5056.

Noelle had invited her friend Celestino Jr., to meet her

and her friends at the Brew and Cue. Tr. 4206. The bar attracted an older crowd,

but it was near her home. Tr. 4214. It was not typical bar. Tr. 4214.

Around 11:30 or 11:45 said that he wanted to head to a different bar –

Taylor’s – near the University of Oregon campus. Tr. 4237. and her

friends didn’t want to go, so she hugged him goodbye. Tr. 4238.

Waiting in the Intrepid, told Crabtree that he thought defendant

was crazy. Tr. 5070. She nodded, and said that defendant was going to

32

kill someone. Tr. 5070. When came out, pointed him out to

Crabtree. Tr. 5057. That was her cue to get out of the car, and began to

yell at her and then drove away. Tr. 5057.

Crabtree approached who had gotten into his car. Tr. 5057.

She asked him for a ride home. Tr. 5057. She was shaking as she asked him. Tr.

5057. asked her if she was ok, not realizing she was shaking out of

fear for him, rather than herself. Tr. 5057. She asked him to give her a ride and

he agreed. 5057.

Around midnight, and her friends left the bar and saw

out front in his car with a woman, Crabtree, leaning over and talking to him. Tr.

4240. did not recognize the woman but did not think anything was out

of the ordinary – she thought that Crabtree was probably flirting with

Tr. 4241.

Crabtree rode the short distance to defendant’s Jessen Street home in

car. Tr. 5076. He pulled into defendant’s driveway and told

Crabtree that he wanted to go inside the house – believing it to be the home

Crabtree’s “boyfriend.” Tr. 5077. They went inside. Tr. 5077. All of the lights

were off. Tr. 5077. asked to use the bathroom. Tr. 5077. While he

was doing so, Crabtree went into the living room, and defendant emerged from

around a corner and told her to sit on the couch and to hide under the

33

kitchen table. Tr. 5078. He was carrying an assault rifle with a knife attached

to it. Tr. 5078-79.

emerged from the bathroom and joined Crabtree on the couch.

Tr. 5078. Defendant came into the living room, placed the knife on the rifle to

throat, and told him to get on the floor. Tr. 5079. When

kneeled, defendant had retrieve blue wire from the kitchen. Tr. 5079. He

unspooled some wire and tied the victim’s feet. Tr. 5094. Finding it too small to

bind his arms, instead used his belt at defendant’s direction. Tr. 5094.

Defendant asked seemingly strange questions, asking

if he had some of defendant’s property. Tr. 5096. He also had go

through his pockets. Tr. 5096. retrieved a white iPhone and asked

for the unlock code, checking it for calls after getting it. Tr. 5097-98.

Defendant then had Crabtree submerge the phone in a bowl of water in the

kitchen. Tr. 5098.

After asking his questions, defendant had put a sock in

his mouth. Tr. 5099. Defendant then spoke with in the kitchen, leaving

on the floor. Tr. 5100. The two men returned and stood

behind Tr. 5100. Defendant nodded and stuck an object, later

determined to be a crossbow bolt, into his ear. Tr. 5100, 5291.

At some point, while was still alive, his phone rang. 5125. It

was his mother, concerned about his whereabouts, trying to call him. Tr. 4354.

34

Crabtree pulled the phone from the bowl of water and mistakenly answered

the call. Tr. 5126. mother heard someone answer and said, “Tino?”

Tr. 4355. Crabtree hung up. Tr. 5126. His mother called again, but the phone

was off by that point. Tr. 4355. Crabtree smashed the phone with a hammer

and, on defendant’s direction, put it back in the bowl of water. Tr. 5126.

fell forward onto his stomach but was still alive. Tr. 5012.

Defendant told to choke him and tried. Tr. 5012. Defendant told

him to hurry and said he thought that “had a lion in that chest.” Tr.

5012. Defendant then retrieved a railroad spike and told to hit the bolt in

farther with it. Tr. 5014. did, and it went in farther, but he was still

alive. Tr. 5105. He was bleeding, but only a small amount, and was still

breathing. Tr. 5106. Crabtree tried to check his pulse and declared that she

thought he was dead, but she was mistaken – he began to breath audibly. Tr.

5017. Defendant left and returned with a chain, like a dog choke collar. Tr.

5107. He wrapped it around neck, placed the railroad spike through

the ends of the chain, placed his foot on the victim’s back, and pulled third three

times. Tr. 5109. After that, the victim was dead. Tr. 5110.

The three of them then carried the body to the bathroom and Crabtree

retrieved gloves. Tr. 5112. Crabtree was afraid and thought she had to comply

or defendant might kill her and her family. Tr. 5114. Defendant retrieved some

knives and then first cut off the victim’s clothes and then severed an arm at the

35

elbow. Tr. 5112-13. After defendant removed the forearm he threw it in the

tub and handed the knife to Tr. 5116. began to saw at the other

arm and defendant stopped him and told him to just slice. Tr. 5116. He did so.

Tr. 5116. Defendant then cut off a lower leg at the knee and then told to

do likewise. Tr. 5116. said that he could not figure out how to do so. Tr.

5116.

As defendant attempted to explain, appeared to have a seizure. Tr.

5116. Defendant struck him in the chest and said, “A.J.” Tr. 5117. Crabtree

asked if he was ok and he seemed disoriented, asking where he was. Tr.

5117. He asked Crabtree what they were doing and she said they were doing a

bank job. Something seemed to click and he asked if he had done that, referring

to the body. Tr. 5118. Defendant responded that he had and told him to finish

with the knee, which he did. Tr. 5118. The men then alternated cutting the legs

off at the hips. Tr. 5118. They sprayed the tub with a shower house and

defendant told Crabtree to get some bags for the parts. Tr. 5120.

Defendant put the parts into the bags and stored them in a freezer in the

garage. Tr. 5120-21. Defendant tied the victim’s torso a pink chair and left it in

the bathtub, explaining that he wanted the blood to drain out of it. Tr. 5122-24.

They tied it with the blue wire. Tr. 5124. Defendant then worked on cleaning

blood from the carpet. 5123.

36

After that, the three of them then wiped down the victim’s car with a

rag and removed some property from it. Tr. 5127. The removed items including

a picture of the victim, which defendant burned in a mug. Tr. 5129. They then

dressed and got ready for the robbery. Tr. 5129. Crabtree went outside and

smoked a cigarette with defendant on the porch. Tr. 5130. He asked her if she

was ok and told her she could only talk about what they had done with himself,

and Tr. 5131. He asked her whether she saw what he had

done, and she said yes. Tr. 5131. He continued that if she told anyone else he

would do the same to her, and that he knew where her family lived. Tr. 5131.

D. The Mapleton Robbery The next morning defendant, Crabtree, and left for the next bank

robbery. Tr. 5132. She drove the Intrepid and defendant and took the

victim’s car. Tr. 5133. They stopped at house, where defendant

told her that they had killed someone and obtained a car and to wait to hear

from them. 4767-68.

Kylie Quam was working as a bank teller at the Mapleton Siuslaw branch

on the morning of August 3, 2012. Tr. 4247. Around 10:30 a.m., as she worked

with Brenda Gray and Peggy Simington, a small white car came into the

parking lot at high speed. Tr. 4249. Quam did not recognize the car and, in a

small town like Mapleton, usually recognized her customers. Tr. 4250. Two

37

men exited the banged-up hatchback wearing masks and ran into the

building. Tr. 4251-52.

Quam told her fellow employees that they were being robbed and pressed

her panic button. Tr. 4252. The men were wearing painter coveralls and each

had a gun – one a handgun, one a rifle. Tr. 4253. One of the men came toward

her, the other toward Gray, and yelled at them to get on the ground. Tr. 4254.

The other man yelled at Gray to cross her hands under her chest, yelling over

and over. Tr. 4256. The taller of the two men asked where she kept her

overflow cash – the extra cash beyond the limit of the amount a teller is allowed

to keep in their drawer. Tr. 4257-58.

Quam indicated her overflow money was in the bottom drawer and

kicked at it with her foot. Tr. 4258. He opened the drawer, took out a cash box,

and set it on a desk. Tr. 4260. From the floor she heard the sound of boxes

being emptied. Tr. 4261.

While on the ground Simington saw the man with the rifle accidentally

drop a bullet. Tr. 4298. After the robbery, she recovered it with a handkerchief

and gave it to law-enforcement. Tr. 4301.

One of the men said that the vault was open and the other said to leave it.

Tr. 4262. A customer – Harley Mayfield – walked in at that point, and one of

the men said, “Welcome to the party,” and ordered her down. Tr. 4263. Quam

heard a yelling voice say that he would kill them if they moved, then heard the

38

mean leaving, followed by the sound of grinding gears and squealing tires.

Tr. 4264. After 10 or 15 seconds, Quam stood up and locked the door as May

called the police. Tr. 4266.

After the robbery, Quam’s overflow door was short at least $1,980. Tr.

4267. May was missing $1,690, and Simington $3,330. Tr. 4290, 4306.

Included in the money taken was some “bait money,” a number of bills whose

serial numbers the bank had recorded. Tr. 4270.

On the way to the bank, Crabtree had stopped after her car ran out of gas.

Tr. 5134. Having fallen behind, she had to get directions to the meeting spot:

Whiteaker Creek Pullout. Tr. 5134. When she arrived, defendant and

were already waiting after the robbery, and defendant was angry that she was

late. Tr. 5134. They were hiding in some bushes when she pulled up. Tr. 5135.

Defendant and moved a cooler from car into the Intrepid.

Tr. 5136. Both men were armed. Tr. 5136. Defendant, dressed in dark clothing,

had a pistol, and wearing white, had a rifle. Tr. 5136. Crabtree drove

them to Eugene in the Intrepid, leaving car behind. Tr. 5137.

Defendant gave her directions on the way. Tr. 5137.

Defendant called to say they were 20 minutes out. Tr.

4768. She filled her upstairs bathtub with water. Tr. 4768. Back at

house, they again put the money into a bathtub to thwart

tracking devices before splitting it. Tr. 5138. Crabtree received $1,000. Tr.

39

5138. Defendant also gave Crabtree a pair of sunglasses and an iPhone and

a lighter and a bracelet, calling them trophies. Tr. 5141.

E. The disposal of the victim’s body. On Saturday morning, went to defendant’s Jessen Street

house. Tr. 4779. The body was still there, and defendant told her that

was out in the woods digging a hole. Tr. 4880. Defendant had

purchase lime at a Fred Meyer. Tr. 4781. She loaded two bags of it into the

Caravan and brought it home, leaving the vehicle there. Tr. 4784.

took Crabtree to defendant’s house in the Intrepid, but they

saw a truck parked outside. Tr. 4784. They thought it was defendant’s brother

and were panicked that he had found the body. Tr. 4784. They went back to

house and defendant said he would take all of the “shit” for the

killing. Tr. 4785. However, the truck was actually a neighbor’s. Tr. 4785.

and defendant went to the Jessen house and called back with an all-

clear. Tr. 4785.

At defendant’s house, and Crabtree took items from the

trunk, including jumpsuits from the robbery, and stored them in a dryer. Tr.

4786-87. Before went into the house, Crabtree went in and closed

the bathroom door. Tr. 4788. The two women left, stopping at

house before drove Crabtree to Portland. Tr. 4788.

40

The next day, took three of her children to a birthday

party at the Amazon Pool. Tr. 4790. Defendant later told that he

was going to pick up from the woods, and asked her to work on

cleaning up blood from the living room of his house. Tr. 4792. Eventually

defendant drove to Portland. Tr. 4792.

F. The police investigation.

mother, Rose, texted him the night he went to the Brew and

Cue and told him she was not feeling well. Tr. 4353. She was concerned when

he did not respond – that was not like him. Tr. 4353. That is why she tried

calling him late that night, prompting Crabtree’s accidental answering. Tr.

4353.

The next morning, she called hospitals and jails looking for him. Tr.

4357. She and father drove around and looked for him before she

made a police report. Tr. 4358. She gave them a physical description – he was

5’4”, 145 points, had brown hair with frosted tips, and green eyes. Tr. 4361.

She also told them about his car: a white 2010 Toyota Matrix with a hatchback

and a stick shift. Tr. 4362.

On August 3, at about 11:15, Oregon State Police Trooper Justin

Goldsmith discovered car crashed into a tree, locked in gear, and

with the keys in the ignition. Tr. 4371-72. It was at a county refuse transfer site,

near milepost 19 on State Route 126. Tr. 4370.

41

Although local police had the tracker information while they were

searching for the victim, his body was discovered without using it, because the

FBI had not provided the information in a readily usable format. Tr. 4539.

However, the state used the tracker data to create various maps illustrating the

movement of the two cars during the period leading up to and following the

murder. Ex 66, 67, 596-607. Detective Donaca testified about the maps and

explained how the information they presented confirmed the state’s theory of

the case. Tr. 5589-5614.

In particular, the tracker data shows that on August 1, 2012, both the

Intrepid and the Caravan made a trip from Eugene to Walton (toward Mapleton)

and back.5 Ex 596, 597. Next, on the evening of August 1, 2012, the Intrepid

visited a Cabela’s store. Ex 598. On the afternoon of August 2, 2012, the

Intrepid went to a Dairy Mart store. Tr. 5598. On the evening of August 2,

2012, the Intrepid again travelled to Walton (toward Mapleton). Ex 608.

At 11:57 p.m. on August 2, 2012, the Intrepid left the Leah address. It

arrived at the Brew & Cue seven minutes later, at 12:04 a.m. on August 3,

2012. Ex 606. At 12:09 a.m., the Intrepid left the Brew & Cue. It arrived at the

5 No tracker data exists for locations west of Walton on the way to

Mapleton because the trackers use the cellular phone infrastructure to transmit, and cell service drops off west of Walton. See, e.g., Tr. 5591 (Detective Donaca explains that there is no tracker data for locations west of Walton, such as Mapleton, because Walton is where cell service drops off).

42

Jessen address at 12:13 a.m. At 12:18 a.m., the Intrepid left the Jessen

address and returned to the Brew & Cue, arriving there at 12:22 a.m. At 12:44

a.m., the Intrepid left the Brew & Cue and returned to the Jessen address,

arriving there at 12:45 a.m. The Intrepid remained at the Jessen address for the

rest of the night. It returned to the Leah address at 7:02 a.m. on August 3, 2012.

Ex 607; Tr. 5609-14.

Later on the morning of August 3, 2012, the Intrepid made another trip to

Walton (toward Mapleton) and back. Ex 601. That same afternoon, the Caravan

made a trip to a Fred Meyer store. Tr. 5600-01. On the night of August 3, 2012,

the Intrepid traveled to an address on Oatfield Road in Milwaukie. It arrived

back in Eugene just after midnight on August 4. Ex 602.

On the morning of August 4, 2012, the Caravan left Eugene at 9:18 a.m.,

and approached the area where the victim’s body was subsequently discovered.

It arrived back at the Leah address at 10:52 a.m. Ex 603; Tr. 5603-04. Shortly

thereafter, at 11:07 a.m., the Intrepid left the Leah address and approached the

area of the burial site. Ex 604. The Intrepid then travelled from the area of the

burial site to the Oatfield Road address in Milwaukie, leaving at 2:44 p.m. and

arriving at 5:44 p.m. Ex 605. The Intrepid returned to the Leah address in

Eugene on that same day, arriving at 7:54 p.m. Id.

On August 4, Oregon Department of Forestry employee Andrew Moser

was patrolling a remote wooded area near Wolf, Coyote, and Battle Creeks. Tr.

43

4453. During his patrol he smelled smoke and came upon what he believed

initially to be a trash fire, which he put out with his foot. Tr. 4463-64. When the

flame was out he saw that the pile contained documents bearing

name, including a vehicle registration. Tr. 4467-68. They seemed important,

unlike the trash piles he had previously seen. Tr. 4467. It also appeared that

someone had poured a “fuse” of fuel or other accelerant to the pile. Tr. 4469.

Moser called the Lane County Sheriff’s Department. Tr. 4469. While he

was waiting for a deputy, Oregon State Police Trooper Ed Imholt happened

upon the scene while on patrol. Tr. 4470. Imholt told Moser that it looked like

trash and not to bother the Sheriff’s Department. Tr. 4472. Moser believed

something was wrong, and waited for a deputy. Tr. 4473.

Lane County Sheriff’s Deputy Eric Franklin responded to Moser’s call

regarding the fire. Tr. 4505. When he arrived, he recognized name

and made the connection with the missing-person case. Tr. 4508. After double-

checking the name of the missing person, he inspected the burn pile and noted

the presence of paystubs and other documents. Tr. 4510. Eventually, multiple

detectives from the Eugene Police Department arrived and a broader search of

the area ensued. Tr. 4512. Police used cadaver dogs in their search of the

wooded area. Tr. 4516.

Clifton Harrold of the Lane County Sheriff’s Department assisted in the

investigation. Tr. 4522. He observed the red Dodge Caravan parked at the Lea

44

street residence. Tr. 4522. The van was registered to Linda and

Harrold knew her to be associated with defendant. Tr. 4522. During his

investigation, Harrold spoke with Rose the victim’s mother. Tr.

4531. She told him that he had last been seen at the Brew and Cue. Tr. 4531.

On August 5, 2012, Harrold received a call from Franklin about the burn

pile found near Battle Creek Road. Tr. 4531. Harrold requested increased

manpower to aid in searching the area, including trained Search and Rescue

personnel. Tr. 4532.

On August 8, 2012, Sheriff’s Deputy Marvin Combs assisted the search

in the wooded area along with Deputy Brian Devault. 4/24/2014 Tr. 4588.

Combs had experience patrolling that area of the forest and was familiar with

the environment. 4/24/2014 Tr. 4587. He and Devault parked near a small spur

road or path and walked down a barely-visible path. 4/24/2014 Tr. 4598.

Walking down the path and past a fallen tree, they discovered a recent-looking

paper bag, paper plates, and a few shell casings. 4/24/2014 Tr. 4600. Combs

observed that some trees had been recently shot – there was damage to their

bark. Tr. 4602.

As they left the area, Devault noticed a little path that looked “pretty

fresh” along with a bare patch of dirt. 4/24/2014 Tr. 4603. The dirt path was

fairly large, about six by eight feet. 4/24/2014 Tr. 4604. Combs noticed

footprints in the area, as well. 4/24/2014 Tr. 4605. Believing he may have found

45

a burial site, Combs and Devault left the area – cell and radio reception were

poor at the dirt patch – and contacted supervisors. Tr. 4605. Within half an

hour, several other officers arrived, and Combs showed them the site. 4/24/2014

Tr. 4607. Ultimately, as the sun was getting low, officers guarded the site

through the night so they could further investigate in the light of day. 4/24/2014

Tr. 4608.

The next day, Jeanne McLaughlin, a doctor of biological anthropology

and Lane County Sheriff’s Department Special Deputy with experience

excavating bodies, returned to the patch of earth. 4/24/2014 Tr. 4629. She found

the earth loosely packed and easy to dig. 4/24/2014 Tr. 4630. As the excavation

progressed, she observed marks from a pointed shovel in the “walls” of the

burial. 4/24/2014 Tr. 4633.

The burial site contained a white and grey substance mixed in with the

soil. Tr. 4636. The substance was consistent with agricultural lime and was not

present in the surrounding area. 4/24/2014 Tr. 4636. Digging further, the

searchers found a pair of gloves, a black plastic and a braided rug, and pieces of

blue wire. 4/24/2014 Tr. 4638-39.

The team then began to excavate pieces of the victim’s body. 4/25/2014

Tr. 4586-88. The victim’s torso had blue wire around the waist. 4/25/2014 Tr.

4590. They observed a metal or plastic object the approximate diameter of a

pencil in his left ear. 4/25/2014 Tr. 4591. The victim’s bones were not sawed,

46

but rather cut at the joints, which McLaughlin described as difficult to do.

4/25/2014 Tr. 4592. This was the first body she had seen that was taken apart at

the joints in that matter, and the deepest hole she had ever excavated. 4/25/2014

Tr. 4593.

On August 8, police believed that they had probable cause to arrest

defendant for robbery. 4/25/2014 Tr. 4620. They waited until defendant had left

his home before making the arrest. T4/25/2014 Tr. 4621. The arrest was a high-

risk one, utilizing SWAT personnel. 4/25/2014 Tr. 4619. Police placed a car in

front of defendant, who was driving the intrepid, and pinned him from behind

with another car. 4/25/2014 Tr. 4626. Eugene Police Department Sergeant Scott

Vinje approached defendant’s window and told him to make his hands visible.

4/25/2014 Tr. 4626. Officers cut defendant’s seat belt rather than allow him to

reach for it. 4/25/2014 Tr. 4627. Defendant was compliant with officers and

informed them that he had two broken legs. 4/25/2014 Tr. 4628. He had a

revolver in his waistband at the time of the arrest. 4/25/2014 Tr. 4628.

Defendant had a young female passenger in the car at the time, whom Vinje

attempted to calm after the arrest. 4/25/2014 Tr. 4629.

Eugene Police Officer Judson Warren transported defendant to the police

headquarters and provided him with Miranda warnings. Tr. 4663.

After the arrest, officers went to the Jessen and Lea street addresses. Tr.

4660. The Lea street residence was empty. Tr. 4660. They breached the door at

47

Jessen and Eugene Police Officer William Solesbee noticed an odor that he

associated with decomposing bodies. Tr. 4662. Eugene Police Detective Jeffrey

Donaca interviewed defendant at the police station. Tr. 4974. Defendant denied

killing anyone and stated that he would kill anyone who had committed a crime

in his home and jeopardized him or his family. Tr. 4979.

Police continued to examine the body and search the Jessen and Lea

residences. They discovered marked “bait bills” stolen from the Mapleton bank

in the Lea street home. Tr. 4971-73. A cigarette butt found on a porch North of

the Jessen house had DNA that matched and another matched Crabtree.

Tr. 5354-56. A stain in the freezer returned a partial profile that was consistent

with the victim. Tr. 5356. A stain from the bathroom sink was a mixed profile,

with the victim as the likely major contributor. Tr. 5358. A trashcan contained

blue wire and other items including used gloves. 5/1/2014 Tr. 61. Police also

recovered a small crossbow and an arrow. 5/1/2014 Tr. 70-71. The kitchen trash

contained an oil-change receipt for a Toyota Celica. 5/1/2014 Tr. 80. There

were a number of stains that appeared partially cleaned. 5/1/2014 Tr. 89.

The victim’s DNA was also detected on the flooring of the house, the

rear hitch of the Dodge Intrepid, and the blade of a fillet knife. Tr. 5363-5367.

The trunk of that car contained a machete, a folding shovel with dirt on it, an

open bag of lime, and .32 and .44 caliber cartridges. 5/1/2014 Tr. 41-46.

48

II. Facts introduced during the penalty phase In 1977, Lane County Sheriff’s Deputy James Wolcott investigated the

murder of Constance Roland. Tr. 5929. Roland’s body was found in a wooded

off-road area. Tr. 5932. She was apparently killed by a shotgun blast to the

body. Tr. 5933. When her body was discovered, police realized that a license

plate number was written on her hand. Tr. 5934. Identifying defendant as the

registered owner of that plate, police arrested him and his girlfriend. Tr. 5934.

Defendant admitted that he had killed Roland. Tr. 5937. He borrowed a

shotgun, drove to a gas station, raised the hood of his car, and placed the gun on

the engine. Tr. 5938. His girlfriend, Diane was with him. Tr. 5937.

When the attendant – – came out he raised the gun and ordered her into

the car. Tr. 5938. He drove away and took her ring, watch, and money. Tr.

5939. He ordered her out of the car and shot her before discarding the gun. Tr.

5939. He pleaded guilty to murder in that case. Tr. 5940.

While in custody, defendant worked in the hobby shop as a silversmith.

Tr. 6098. He was released in 2004. Tr. 6081. Phillip Lehman, defendant’s

parole office, recommended him for early termination from supervision due to

his compliance and lack of violations. Tr. 6085.

In October of 2009, a Tillamook County Sheriff’s Deputy responded to

an assault call involving defendant. Tr. 5947. Defendant and Yvone

were at a Comfort Inn and he said that she had attacked him and that he

49

responded by pushing her away with his hands around her neck. Tr. 5950.

She testified that defendant would not allow her to leave the motel room and

eventually threw her across the room and broke her ribs. Tr. 5962. Defendant

was convicted of assault in the fourth degree and strangulation on November 3,

2009. Tr. 5952.

PART ONE: ASSIGNMENTS OF ERROR PRESENTING ISSUES UNIQUE TO THIS APPEAL

FIRST ASSIGNMENT OF ERROR6

The trial court erred when it declined to instruct the jury on defendant’s

requested lesser-included theory of manslaughter on Count 14, aggravated

murder.

SECOND ASSIGNMENT OF ERROR



murder.

6 Defendant combines the Preservation of Error, Standard of

Review, and Argument sections of the First through Fourth Assignments of Error because they present essentially the same legal question. ORAP 5.45(6).

50

THIRD ASSIGNMENT OF ERROR The trial court erred when it declined to instruct the jury on defendant’s


murder.

FOURTH ASSIGNMENT OF ERROR



murder.

Combined Preservation of Error7

After the close of evidence during the guilt phase of defendant’s trial, the

parties discussed their requested jury instructions. Defendant and the state each

provided lists of requested instructions; yet, defendant orally requested a lesser

included manslaughter instruction. During the discussion, apparently

referencing an earlier discussion off the record in chambers, the following

exchange took place:

“[THE COURT]: In chambers, the defense had requested some manslaughter instructions, but we never got that done on the record. So let’s just make sure that we make a record of that.

7 At trial, the state and defendant were each represented by two

attorneys. Defendant will refer throughout this brief to the prosecutor and defense counsel collectively in the singular.

51

“[DEFENSE COUNSEL]: Just formally for the record, Your Honor, we have asked for Manslaughter in the First Degree instructions on a reckless theory with extreme indifferences to the value of human life as a lesser to each and every kind of intentional motive.

“And for the record, it’s our position that it’s the jury’s responsibility to determine the intent. And to the extent that they may determine that a particular act is not intentional, they should be allowed the opportunity to consider Manslaughter in the First Degree as a lesser offense to those charges.”

“That’s all we have, Your Honor.

“THE COURT: All right, and what evidence is there from which they could conclude any of this was done recklessly? I mean, as I understand your theory of the case, your client didn’t do it; somebody else did it. It seems like there’s no evidence from which they could conclude it was done recklessly. It wasn’t like it was an accident or someone was just waving around a crossbow or something like that.

“[DEFENSE COUNSEL]: I appreciate that, Your Honor. It’s still our position it’s the jury’s problems to do that, so –.

“THE COURT: Okay. And the State’s response to that for the record?

“[PROSECUTOR]: We’re opposed. We agree with the Court’s interpretation, Your Honor.

“THE COURT: All right. I’m going to find that the instructions will not be given. I don’t think they’re justified by the evidence. There’s no evidence that would support a reckless mental state or that these incidents occurred recklessly in any way.”

Tr. 5688-90.

The trial instructed the jury on each of the four counts of aggravated

murder. Tr. 5711-5722. On Count 14, in which the state alleged as an

52

aggravating factor that defendant had “been previously convicted of murder,”

the trial court did not instruct the jury on any lesser-included offenses. Tr. 5711.

On Count 15, in which the state alleged that the crime was aggravated by

the fact that it was committed “during the course of or in furtherance of the

crimes of Kidnaping in the First Degree and Robbery in the First Degree,” the

trial court instructed on two lesser-included offenses: felony murder and

intentional murder. Tr. 5714.


the fact that it was “committed in an effort to conceal the commission or

identity of the perpetrator of various crimes,” the trial court instructed on one

lesser-included offense: intentional murder. Tr. 5719.


the fact that it was committed “as the result of intentional maiming or torture,”

the trial court instructed on one lesser-included offense: intentional murder. Tr.

5722.

The court did instruct the jury on the lesser-included offense of

manslaughter for any offense. After the trial court instructed the jury, defendant

excepted to its failure to instruct on manslaughter. Tr. 5807.

53

Combined Standard of Review

This court reviews a trial court’s instruction to a jury for legal error. State

v. 241 Or App 681, 686, 251 P3d 240 (2011), rev dis’d, 354 Or 62, 308

P3d 206 (2012). Generally, a party is entitled to have a proposed jury

instruction given if the instruction properly states the law applicable to the case.

State v. Barnes, 329 Or 327, 334, 986 P 2d 1160 (1999). A reviewing court

views the evidence “in the light most favorable to the establishment of the facts

necessary to require giving the requested instruction.” Hernandez v. Barbo

Mach. Co., 327 Or 99, 101 n 1, 957 P2d 147 (1998) (citing Carter v. Mote, 285

Or 275, 279, 590 P2d 1214 (1979)). However, a trial court does not err in

declining to give a correct instruction that “was covered fully by the trial court’s

other instructions.” Id. A trial court’s failure to properly instruct a criminal jury

also infringes a defendant’s federal due process rights. See Buchanan v.

Angelone, 522 US 269, 276, 118 S Ct 757, 139 L Ed 2d 702 (1998)

(considering defendant’s challenge to provision of certain instructions).

54

Combined Argument

I. Defendant was entitled to an instruction on the lesser-included offense of manslaughter for each count of aggravated murder The trial court erred when it refused to provided defendant’s requested

lesser-included offense instruction of manslaughter on each of the four counts

of aggravated murder.

A defendant is entitled to have her theory of the case presented to the jury

if there is evidence to support the theory. State v. Brown, 306 Or 599, 603-04,

761 P2d 1300 (1988) (citations omitted). A trial court does not have discretion

to refuse to instruct a jury on a defense theory if (1) the instruction is an

accurate statement of law and (2) defendant presented evidence to support the

required elements of the instruction. State v. McBride, 287 Or 315, 319, 599

P2d 449 (1980). The evidence supporting the party’s theory need not have been

offered by that party. Rather, “[a] jury instruction is supported by the evidence

if there was any competent evidence to support it.” State v. Beck, 269 Or App

304, 309, 344 P3d 140, 143 (2015), rev den, 357 Or 164 (2015).

(quoting Crimson v. Parks, 238 Or App 312, 314, 241 P3d 1200 (2000))

(quotation marks omitted). In determining whether the evidence supports giving

a particular instruction, a reviewing court views the evidence “in the light most

favorable to the party offering the jury instruction.” Id. As this court put it, “A

requested instruction on a lesser-included offense should be given whenever

55

there is an evidentiary basis from which the jury could find or infer that the

truth lay somewhere between the state’s and the defendant’s versions of the

crime.” State v. Cunningham, 320 Or 47, 58, 880 P2d 431 (1994).

The requirement that a trial court give a requested lesser-included jury

instruction has a statutory basis. ORS 136.460 provides:

“(1) Upon a charge for a crime consisting of different degrees, the jury may find the defendant not guilty of the degree charged in the accusatory instrument and guilty of any degree inferior thereto or of an attempt to commit the crime or any such inferior degree thereof.

“(2) 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.

“(3) When a jury finds a defendant guilty of a lesser included offense, the court, upon a request by the state or defendant, shall poll the jury on the original charge. If fewer than the required number of jurors vote to find the defendant not guilty on the original charge, the court shall not receive the verdict and shall instruct the jury to continue deliberations.

“(4) If the jury is unable to reach a decision on the original charge, the state and defendant may stipulate that the jury may consider any lesser included offense.”

Further, ORS 136.465 provides: “In all cases, the defendant may be

found guilty of any crime the commission of which is necessarily included in

that with which the defendant is charged in the accusatory instrument or of an

attempt to commit such crime.” Thus, “either the defense or the prosecution

56

may ask that the jury be instructed as to lesser offenses that are included

either in the statutory framework defining the greater and lesser offenses or in

the accusatory instrument itself.” State v. Cunningham, 320 Or 47, 58, 880 P2d

431 (1994) (citing State v. Washington, 273 Or 829, 835-36, 543 P2d 1058

(1975)).

Here, defendant sought instructions allowing the jury to find that, for

each count of aggravated murder, he had committed the lesser-included offense

of first degree manslaughter on the theory that the homicide was committed

recklessly under circumstances manifesting extreme indifference to the value of

human life. That theory of manslaughter is defined in ORS 163.118(1)(a),

which provides:

“(1) Criminal homicide constitutes manslaughter in the first degree when:

“(a) It is committed recklessly under circumstances manifesting extreme indifference to the value of human life;”

Manslaughter is a lesser-included offense of intentional murder. See

Cunningham, 320 Or at 57 (discussing whether sufficient evidence existed to

support instruction and apparently assuming that it was a lesser-included

offense). See also State v. Henry, 138 Or App 286, 288, 907 P2d 1133 (1995)

(citing Cunningham and expressly holding that “first-degree manslaughter is a

lesser-included offense of murder”). Intentional murder, in turn, is a lesser-

included offense of aggravated murder. “Aggravated murder, then, may be

57

defined as a murder that is committed ‘intentionally,’ plus something more.

In that sense, intentional murder necessarily is a lesser-included offense of

aggravated murder.” State v. Wille, 317 Or 487, 494, 858 P2d 128 (1993). See

also State v Bowen, 340 Or 487, 516, 135 P3d 272 (2006) (holding that

manslaughter is a lesser-included offense of intentional murder, which is in turn

a lesser-included offense of aggravated murder). Thus, assuming the requested

instruction was supported by evidence in the record, the trial court was required

to give it.

As set out above, this court reviews the evidence in the light most

favorable to the establishment of the facts necessary to require giving the

requested instruction. Although the state presented testimony from witnesses

who alleged that defendant personally committed the murder, defendant’s

theory of the case was, in essence, that was the primarily culpable party

and that Crabtree’s testimony painting defendant as the ringleader was

motivated by a desire to protect her longtime friend and that she herself

was more culpable than she described. Defense counsel explained that theory

during guilt-phase opening statements:

“Thank you, Your Honor. AJ planned to kidnap. AJ and Ms. Crabtree kidnapped Tino and AJ

killed Celestino The cast of characters that Mr. Schwartz laid out for you, all of them had multiple levels of involvement in various, different things.

“* * * * *

58

“Mr. Taylor admitted these bank robberies and at the end of this trial, you’re going to convict him of the bank robberies. Mr.

committed the murder with the assistance of Ms. Crabtree and now she’s trying to help him avoid the consequences of that. Thank you.”

Tr. 3876-3880.

In the light most favorable to the giving of the instruction, the jury could

have concluded that defendant was reckless in a manner manifesting extreme

indifference to the value of human life when he caused to be brought

to his home in order to effectuate a robbery disregarding the danger of allowing

him to come under the control of and Crabtree. Assuming arguendo that

the evidence was sufficient to find that defendant personally responsible for the

murder in the light most favorable to the state, that is not the standard for this

question. Rather, this court must consider the evidence in the light most

favorable to the giving of the instruction. Under that standard, the jury could

have concluded that defendant was involved in a scheme to rob of his

car and was reckless, even reckless under circumstances manifesting extreme

indifference to the value of human life, by placing him in harm’s way.

Put another way, the actual sequence of events that occurred inside

defendant’s home on the night of the murder is a black box elucidated only

through Crabtree’s testimony. While the record contains independent evidence

that defendant was involved in luring the victim from the Brew and Cue bar –

such as his appearance on a surveillance video – Defendant’s presence at, and

59

participation in, the murder itself comes from Crabtree’s testimony. The jury

was free to disregard Crabtree’s testimony, or to selectively accept it. Indeed,

they had good reason to do so – Crabtree was an interested witness. As

defendant argued in closing,

“You know that she’s long-time friends with A.J. You know that they have a sexual relationship. You know that they’re passing notes inside the jail. * * *

“If you don’t think she’s trying to protect herself, her minimal involvement, as well as her friend and sexual partner.

“Some of the phrases, ‘personally and intentionally.’ If A.J. hasn’t personally and intentionally done this, he may avoid

more significant penalties. * * *”

Tr. 5779-80. Later, describing Count 15 and the “personally and intentionally”

element, defendant argued, “The only way you can possibly get there is Ms.

Crabtree, and that’s trusting her one hundred percent that everything she says

happened inside that residence happened.” Tr. 5781-82.

Further, there was affirmative evidence that the jury could have relied

upon to find that defendant acted recklessly. The state introduced a redacted

video recording of an interview of defendant as exhibit 351. In that interview,

defendant told police that Crabtree and stayed at his house the night of

the murder, but that he himself left and spend the night at home.

Ex. 351 53:00-1:13:00. In that same interview, defendant claimed not to know

what happened at his house that night and emphasized that he was not there that

night. Id. From that interview, the jury could find that defendant recklessly

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allowed to come under the control of Crabtree and while

not intending or being personally involved in the murder itself.

Viewing the evidence in the light most favorable to the state, the jury

could have accepted the state’s evidence – Crabtree’s testimony included. But

viewing the evidence in the light most favorable to the giving of the instruction,

the jury could have believed the state’s version, or defendant’s version, or they

could have, as the Court of Appeals once described, “believed a ‘composite’ of

the state’s and defendant’s theories of the case.” State v Jackson, 252 Or App

74, 84, 284 P3d 1266 (2012).

Defendant disputed the state’s account of the murder and Crabtree’s

veracity, and a “defendant is entitled to an instruction on lesser included

offenses if there is a disputed issue of fact enabling the jury to find that all the

elements of the greater offense have not been proven, but that all the elements

of one or more of the lesser offenses have been proven.” State v Naylor, 291 Or

191, 195, 629 P2d 1308 (1981).

II. The trial court’s failure to instruct on the lesser-included offense of manslaughter was not harmless. The state may argue that the trial court’s failure to give defendant’s

requested manslaughter instructions was harmless. It was not.

This court has held that a trial court’s failure to give a requested lesser-

included instruction may be harmless. State v. Zolotoff, 354 Or 711, 718-19,

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320 P3d 561 (2014). That is so because of the existence of ORS 136.460(2),

which provides:

“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.”

Thus, the state may argue, that because the jury convicted defendant of

the charged offense on Counts 14-16, and the more serious lesser-include

offense of intentional murder on Count 17, it would never have considered the

lesser-included offense of manslaughter in the first degree under ORS

136.460(2), the “acquittal first” rule. However, for the reasons discussed below,

the trial court’s failure to give the requested manslaughter instructions was not

harmless.

The trial court did provide an “acquittal first” instruction for those counts

on which it gave a lesser-included instruction.8 On Count 15, the trial court

instructed the jury as follows:

“Count 15 has two lesser-included offenses, the crimes of Felony Murder and Intentional Murder. When you deliberate, you should consider Count 15 as charged. Only if you find the defendant not guilty of the charged offense may you consider the lesser-included offenses of Felony Murder and Intentional Murder. You can consider those charges in any order you wish, but you

8 Below, defendant separately assigns error to the provision of the

“acquittal first” instructions.

62

cannot find the defendant guilty of both Felony Murder and Intentional Murder.”

Tr. 5714-15.

On Count 16, the court instructed the jury as follows:

“Count 16 has as a lesser-included offense the crime of Intentional Murder.”

“When you deliberate you should first consider Count 16 as charged. Only if you find the defendant not guilty of the charged offense may you consider the lesser-included offense of Intentional Murder.”

Tr. 5719.

Similarly, on Count 179 the trial instructed the jury as follows:

“Count 17 has, as a lesser-included offense, the crime of Intentional Murder.

“When you deliberate, you should first [sic] Count 17 as charged.

“Only if you find the defendant not guilty of the charged offense, may you consider the lesser-included offense of Intentional Murder.”

Tr. 5722.

Had the trial court agreed to give defendant’s requested manslaughter

instruction it would have presumably instructed the jury to consider the charged

offense first and only consider the manslaughter instruction were it to acquit on

that offense. Further, on Counts 16-17, on which the trial court instructed the

9 The jury acquitted defendant of the charged offense and found him

guilty of the lesser-included offense of intentional murder on Count 17.

63

jury on the lesser included offense of intentional murder, and Count 15 on

which it instructed the jury on both of the lesser included offenses of intentional

murder and felony murder, it would might have given a further instruction such

as the one found in Uniform Criminal Jury Instruction number 1013:

“MULTIPLE LESSER INCLUDED OFFENSES

“ORDER OF DELIBERATION

“When you deliberate, you should first consider the charged offense of __________. Only if you find the defendant not guilty of the charged offense may you consider the lesser included offense of ___________.

“Only if you find the defendant not guilty of the lesser included offense of [more serious lesser included offense] may you consider the lesser included offense of [less serious lesser included offense].

“[Repeat second paragraph if there are additional lesser included offenses.]”

Thus, on Counts 15-17, the trial court would have instructed the jury that

it must acquit defendant on the more serious “lesser included” offenses before it

considered the manslaughter allegation. However, that does not render the

failure to give the instructions harmless.

The state argued that a jury’s conviction on the charged offense renders a

trial court’s failure to give a lesser-included instruction harmless in Zolotoff.

There, the state conceded that the trial court erred when it failed to provide the

defendant’s requested instruction on attempted inmate in possession of a

weapon, it argued that the error was harmless, because the defendant was

64

convicted of the charged offense and so, even had the jury been instructed as

required on the attempt crime, it would never have “considered” the existence

of that offense under the “acquittal first” instruction and so the lesser-included

instruction would not have affected the verdict. Specifically, the state argued

that,

“This court can be assured that the jury would have found defendant guilty of the charged offense because its guilty verdict demonstrates that it did find, beyond a reasonable doubt, that the state had established the elements of that crime. Thus, according to the state, even if the jury had been instructed on the elements of the lesser crime of attempted possession of a weapon by an inmate, it would have been required to decide the charged crime first and would have reached the same conclusion that it actually reached in this case.”

Zolotoff, 354 Or 715-16.

This court held that the error was not harmless. Id. at 713. In rejecting the

state’s argument, it noted that the legislature, by enacting the “acquittal first”

rule, had not acted to preclude the trial court from instructing on lesser-included

offenses before deliberations began:

“In fact, ORS 136.460(2) seems to assume that, when the court instructs the jury on the order of its deliberations, it also will instruct it on the elements of the offenses that the jury may, sequentially, consider. The legislative mandate that the jury consider the applicable offenses in a particular order does not affect or eliminate the underlying legislative directive that, on request, the jury also be instructed on the elements of relevant lesser-included offenses.”

Id. at 717.

65

This court held that, in light of the acquittal first, the failure to give a

lesser-included offense could constitute harmless error when the jury finds a

defendant guilty on the charged offense. Id. at 718-19. As an example, it cited

this court’s decision in State v. Bowen, 340 Or 487, 517, 135 P3d 272 (2006).

There, this court found an instructional error harmless because “the trial court’s

instructions to the jury, as a whole, were sufficient to inform the jury of the

possible verdicts it could return on the various charges, based on how it

resolved the facts.” 340 Or at 517. The defendant requested that the jury be

instructed that manslaughter was a lesser-included offense of aggravated

murder and that the verdict form include both murder and manslaughter as

lesser-included offenses on each of the two counts of aggravated murder. Id. at

511-12.

The Bowen trial court agreed to instruct the jury on the lesser-included

offense, but declined to instruct the jury that manslaughter was a lesser-

included offense of aggravated murder. Id. at 512-13. Instead, the court only

instructed the jury that it could consider manslaughter as a lesser-included of

intentional murder (Count 3), not aggravated murder (Counts 1 and 2). Id. The

trial court reasoned that if the jury found the defendant not guilty of aggravated

murder, it would then consider intentional murder and its lesser-included

offense of manslaughter. Id.

66

On appeal, the defendant argued that the trial court erred in failing to

instruct the jury that it could consider manslaughter as a lesser-included offense

of aggravated murder. Id. at 514. This court agreed that the trial court erred, but

found that the error was not prejudicial because “the trial court instructed the

jury on the elements of aggravated murder (including the elements of burglary

and robbery), intentional murder, and first-degree manslaughter, albeit not in

the sequence that defendant requested.” Id. at 516. Therefore, “the case was

submitted to the jury with complete and correct statements of the law necessary

for it to properly determine whether the state had proved defendant’s guilt on

the crimes charged beyond a reasonable doubt.” Id. at 517 (emphasis added).

Accordingly, the instructions as a whole were correct and no elements or

permissible verdicts were wholly omitted.

Here, the instructions as a whole did not inform the jury of the possible

verdicts it could return – the lesser-included manslaughter instruction was

entirely omitted, and the jury did not know that it was an option. In other words,

the instructions taken as a whole were not “complete and correct.” Therefore,

the instructions taken as a whole do not remedy the trial court’s error in failing

to instruct the jury that it could convict defendant of the lesser- included offense

of manslaughter.

This court described situations where, in contrast, the failure to give such

and instruction would not be harmless:

67

“There 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. In determining whether an error in failing to instruct on a lesser-included offense is harmless, the question for an appellate court is whether the court can conclude from the evidence, arguments, and instructions in the particular case that the jury would have reached the same conclusion had it been correctly instructed.”

Zolotoff, 354 Or at 719.

Had the requested manslaughter instruction been given, the jury would

have been provided with an instruction explaining the differences between that

offense and the primary offenses. For example, on Count 15 the court gave the

following instruction explaining the difference between the charged offense of

aggravated murder and the lesser-included offenses of felony and intentional

murder:

“The difference in the proof required in the charged offense as compared to the lesser included offense of Felony Murder is that to prove the charged offense the State must prove beyond a reasonable doubt that David Ray Taylor personally and intentionally caused the death. Mere participation in the underlying felony is not enough.

“On the other hand, to prove the lesser-included offense of Felony Murder, the State must prove only that Mr. Taylor participated in the underlying felony, and one of the participants in that felony caused the death of Mr. The difference in proof required between the charged offense and the lesser-included offense of Intentional Murder is that to prove the charged offense, the State must prove that Mr. Taylor intentionally and personally caused the death of Mr. in the course of and in

68

furtherance of the crime of Kidnaping in the First Degree or Robbery in the First Degree or both.

“On the other hand, to prove the lesser-included offense of Intentional Murder, the State must prove only that Mr. Taylor intentionally murdered Mr.

Tr. 5715.

And had the court given defendant’s requested manslaughter instructions,

the jury would have been instructed on the definition of recklessness and the

concept of reckless conduct under circumstances manifesting extreme

indifference to the value of human life. Not only that, it would have been given

an instruction comparing and contrasting those concepts with the mental states

relevant to the charged offenses. Those instructions would have elucidated

those crucial, and complex, concepts for the jury. The trial court’s failure to

give defendant’s requested instructions was not harmless.

III. The trial court’s failure to instruct on the lesser-included offense of manslaughter also violated defendant’s rights under the United States Constitution. The trial court’s failure to instruct on defendant’s requested lesser-

included offense of manslaughter. The United States Supreme Court has

recognized the importance of such instructions to a fair trial, explaining,

“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-

69

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.

“Such a risk cannot be tolerated in a case in which the defendant’s life is at stake. As we have often stated, there is a significant constitutional difference between the death penalty and lesser punishments:

“‘[D]eath is a different kind of punishment from any other which may be imposed in this country. . . . From the point of view of the defendant, it is different in both its severity and its finality. From the point of view of society, the action of the sovereign in taking the life of one of its citizens also differs dramatically from any other legitimate state action. It is of vital importance to the defendant and to the community that any decision to impose the death sentence be, and appear to be, based on reason rather than caprice or emotion.’”

Beck v. Alabama, 447 US 625, 637, 100 S Ct 2382, 65 L Ed 2d 392 (1980)

(quoting Gardner v. Florida, 430 US 349, 357-358, 97 S Ct 1197, 51 L Ed 2d

393 (1977)) (ellipses and brackets in Beck).

Further, in Keeble v. United States, a non-capital case, the United States

Supreme Court interpreted the Major Crimes Act to support the giving of a

lesser-included instruction and avoided a constitutional question, explaining,

“We cannot say that the availability of a third option-convicting the defendant of simple assault-could not have resulted in a different verdict. Indeed, while we have never explicitly held that the Due Process Clause of the Fifth Amendment guarantees the right of a defendant to have the jury instructed on a lesser included offense, it is nevertheless clear that a construction of the Major Crimes Act to preclude such an instruction would raise difficult constitutional questions. In view of our interpretation of the Act, those are questions that we need not face.”

70

412 US 205, 213, 93 S Ct 1993, 36 L Ed 2d 844 (1973) (emphasis added).

Thus, the Court has recognized that refusal to provide a lesser-included offense

instruction may conflict with a criminal defendant’s due process rights even in

the non-capital context.

Here, because defendant’s requested lesser-included manslaughter

instructions were supported by evidence in the record and because the

instructions as a whole failed to correct that instruction’s omission, he is

entitled to a new trial. Further, the failure to provide the jury with those

instructions constituted a violation of the Fifth, Eighth, and Fourteenth

Amendments.

FIFTH ASSIGNMENT OF ERROR

The trial court erred when it imposed a sentence of death during the

pendency of the governor’s moratorium on carrying out capital punishment in

Oregon.

SIXTH ASSIGNMENT OF ERROR

The trial court erred when it declined to instruct the jury that it “must

conclude” that a sentence of death, if imposed, would be carried out and that the

governor did not have the power to repeal the death penalty.

71

Preservation of Error

The first error is unpreserved. Defendant respectfully requests that this

court review it as plain error. The second error, as to the specific wording the

trial court used to discuss the moratorium, is preserved.

In discussing its plans for introducing potential jurors to this case during

voir dire, the trial court announced:

“I’m going to briefly go [over] a few things with them, address the hardship issues, address some things [that] are in their questionnaires that may be obvious to me that I need to discuss with them, briefly address the moratorium of the Governor on executing the death penalty, and then turn them over to you for questioning.”

Tr. 1025.

Later, the trial court expanded on its plans, apparently referring to an off-

the-record discussion:

“Let’s start with – last week I sent counsel a portion of the script I plan to read to the jury and ask for comments on them.

“The parties commented on two, perhaps three, issues * * * * *

“They also commented on the description I had provided, or intend to provide, regarding the moratorium that – or what’s referred to colloquially as the moratorium provided by Governor Kitzhaber – that Governor Kitzhaber is engaged in with regard to the death penalty, and they suggested that I make certain changes to that language.

“Frankly, I’m not inclined to make some of those changes, or the changes you suggest, and the reason being that I did not intend this provision to be a dissertation about what the governor could or could not do. In fact, there are other things the governor

72

could do that are not addressed by the proposed language that you suggest. I intended it rather to be an explanation of what the governor, in fact, has done.

“Therefore, what I propose to read to the jury – I’m going to give each of you a chance to respond to this – is the following. ‘Some of you may have heard that Governor Kitzhaber has declared a moratorium on the death penalty. In legal terms, what he has done is to grant temporary reprieves of existing death sentences. Those reprieves last only as long as he remains in office. Thus you should assume that death sentences handed down while he is Governor will ultimately be carried out.’”

Tr. 1146-48 (italics in transcript).

The trial court asked the parties for any comments on the proposal. Tr.

1148. The state had none. Tr. 1148. Defense counsel said, “None, other than

what he [sic] had suggested in our email to the court, Your Honor.” Tr. 1148.

The trial court clarified that email discussion, for the record:

“All right. So just to be clear, Counsel, for the record, you had suggested that I add ‘although the Governor has power to grant temporary reprieves he cannot repeal capital punishment, which can only be eliminated by the voters amending the Oregon Constitution,’ which I am not adding.

“You also suggested I change the words ‘must assume’ to ‘must conclude,’ and I’m not making that change either.”

Tr. 1148-49 (italics in transcript).

The trial court instructed each panel of potential jurors about the

moratorium in the manner quoted above. Tr. 1186, 1514, 1666, 1810, 1995,

2132, 2255, 2394, 2498, 2619, 2740, 2876, 3002, 3117, 3276, 3395, 3547,

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3685. Defendant questioned a number of potential jurors about their

familiarity with the moratorium and their reactions to it.

While defendant did request certain changes to the trial court’s “script” in

discussing the moratorium, he acknowledges that he did not preserve an

argument the ongoing moratorium rendered the imposition of a death sentence

unconstitutional. Therefore, he requests that this court review the matter as

plain error. State v. Terry, 333 Or 163, 180, 37 P3d 157 (2001), cert den, 536

US 910 (2002) (“Even if a party fails to preserve a claim of error, appellate

courts nonetheless possess discretion to consider it if it is plain error, also

known as error ‘apparent on the face of the record.’”). In Terry, the Oregon

Supreme Court explained that:

“The elements of ‘error apparent on the face of the record’ are: ‘(1) the error is one of law; (2) the point is obvious, i.e., is not reasonably in dispute; and (3) the error is not one respecting which the court must go outside the record or select among competing inferences.’”

333 Or at 180 (citation omitted).

Once those elements are satisfied, an appellate court must exercise

discretion whether to review the error. In deciding whether to review an error of

law on the face of the record, this court may consider:

“the competing interests of the parties; the nature of the case; the gravity of the error; the ends of justice in the particular case; how the error came to the court’s attention; and whether the policies behind the general rule requiring preservation of error have been served in the case in another way, i.e., whether the trial court, in

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some manner, was presented with both sides of the issue and given an opportunity to correct any error.”

Id. at 180 n 11 (relying on Ailes v. Portland Meadows, Inc., 312 Or 376, 382 n

6, 823 P2d 956 (1991)).

The error in this case meets the criteria for plain error review. For the

reasons discussed below, a sentence of death imposed by a jury that has reason

to believe that its decision is not final is invalid. This court should exercise its

discretion to review the error because the gravity of the error is great.

Defendant has been sentenced to death by a jury that acted with the full

knowledge that the then-governor had declared that he would prevent death

sentences from being carried. As discussed below, this fact fatally lessened the

gravity of the jury’s decision and rendered its sentence invalid.

Standard of Review

Whether a sentence of death has been imposed by a “sentencer who has

been led to believe that the responsibility for determining the appropriateness of

the defendant’s death rests elsewhere” is a question of law. Caldwell v

Mississippi, 472 US 320, 329, 105 S Ct 2633, 86 L Ed 2d 231 (1985) (applying

that standard).

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Argument

The trial court erred by imposing a death sentence on defendant during

Oregon’s death penalty moratorium. Despite the trial court’s instructions to the

jurors, a reasonable person would find the moral gravity of his or her decision-

making to be compromised under the circumstances. Moreover, the trial court

erred when it rejected defendant’s request that it strengthen the language of that

instruction to ensure that the jury understood the awesome decision that it was

required to make.

When this court affirmed Gary Haugen’s conviction and sentence of

death he waived his right to further appeals and the trial court set a date for his

execution. Haugen v. Kitzhaber, 353 Or 715, 717, 306 P3d 592 (2013), cert

den, ___ US ___, 134 S Ct 1009 (2014). In response, then-governor Kitzhaber

granted a reprieve of Haugen’s sentence. Id. Further, the Governor announced

“that he would allow no more executions in the state during his time in office.”

10 William Yardley, Oregon Governor Says He Will Block Executions, New

York Times, November 22, 2011,

10 When Governor Kitzhaber resigned, he was succeeded by Kate

Brown, who announced that she planned to extend the moratorium on executions. Shelby Selbens, New Oregon Governor Kate Brown to extend death penalty moratorium, Reuters, February 20, 215, http://www.reuters.com/article/us-usa-politics-oregon-idUSKBN0LO2E420150220. That decision took place after the conclusion of defendant’s trial and penalty phase.

76

http://www.nytimes.com/2011/11/23/us/oregon-executions-to-be-blocked-

by-gov-kitzhaber.html.

Haugen opposed the reprieve, and sought to have his execution carried

out via a declaratory judgment action. Haugen v. Kitzhaber, 353 Or at 719. The

trial court ruled in Haugen’s favor, concluding that he had the right to reject the

reprieve. Id. The governor appealed and this court reversed, holding that

Haugen could not be executed despite his purported rejection of the reprieve.

Id. at 745-46. This court issued its decision in Haugen on June 20, 2013. Id.

Voir dire in this case began on April 2, 2014. Tr. 1486. The penalty phase

concluded on May 20, 2014. Tr. 6345. Thus, the jury’s entire service took place

after this court reached its decision in Haguen.

I. The trial court plainly erred when it entered a sentence of death during the death penalty moratorium. “[I]t is constitutionally impermissible to rest a death sentence on a

determination made by a sentencer who has been led to believe that the

responsibility for determining the appropriateness of the defendant’s death rests

elsewhere.” Caldwell, 472 US at 328–29.

In Caldwell, the defendant urged the jury to spare his life and during

closing argument emphasized to the jury the “awesome responsibility” that it

had in making its sentencing decision. Id. at 324. The prosecution’s argument

sought to undermine that argument as follows:

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“ASSISTANT DISTRICT ATTORNEY: Ladies and gentlemen, I intend to be brief. I’m in complete disagreement with the approach the defense has taken. I don’t think it’s fair. I think it’s unfair. I think the lawyers know better. Now, they would have you believe that you’re going to kill this man and they know—they know that your decision is not the final decision. My God, how unfair can you be? Your job is reviewable. They know it. Yet they . . .

“COUNSEL FOR DEFENDANT: Your Honor, I’m going to object to this statement. It’s out of order.

“ASSISTANT DISTRICT ATTORNEY: Your Honor, throughout their argument, they said this panel was going to kill this man. I think that’s terribly unfair.

“THE COURT: Alright, go on and make the full expression so the Jury will not be confused. I think it proper that the jury realizes that it is reviewable automatically as the death penalty commands. I think that information is now needed by the Jury so they will not be confused.

“ASSISTANT DISTRICT ATTORNEY: Throughout their remarks, they attempted to give you the opposite, sparing the truth. They said ‘Thou shalt not kill.’ If that applies to him, it applies to you, insinuating that your decision is the final decision and that they’re gonna take Bobby Caldwell out in the front of this Courthouse in moments and string him up and that is terribly, terribly unfair. For they know, as I know, and as Judge has told you, that the decision you render is automatically reviewable by the Supreme Court. Automatically, and I think it’s unfair and I don’t mind telling them so.”

Id. at 325-26. An equally divided Mississippi Supreme Court affirmed the

defendant’s sentence of death. Id. at 326. On review, the United State Supreme

Court reversed based on the Eighth Amendment to the United States

Constitution. Id. at 329.

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In telling a sentencing jury that the ultimate responsibility for a

defendant’s fate rests with a higher authority,

“the argument offers jurors a view of their role which might frequently be highly attractive. A capital sentencing jury is made up of individuals placed in a very unfamiliar situation and called on to make a very difficult and uncomfortable choice. They are confronted with evidence and argument on the issue of whether another should die, and they are asked to decide that issue on behalf of the community. Moreover, they are given only partial guidance as to how their judgment should be exercised, leaving them with substantial discretion. Given such a situation, the uncorrected suggestion that the responsibility for any ultimate determination of death will rest with others presents an intolerable danger that the jury will in fact choose to minimize the importance of its role. Indeed, one can easily imagine that in a case in which the jury is divided on the proper sentence, the presence of appellate review could effectively be used as an argument for why those jurors who are reluctant to invoke the death sentence should nevertheless give in.”

Id. at 332-33 (internal citations omitted, emphasis added). The prosecutor’s

argument, thus, “sought to give the jury a view of its role in the capital

sentencing procedure that was fundamentally incompatible with the Eighth

Amendment’s heightened ‘need for reliability in the determination that death is

the appropriate punishment in a specific case.’” Id. at 340 (quoting Woodson v

North Carolina, 428 US 280, 305, 96 S Ct 2978, 49 L Ed 2d 944 (1976)).

Here, the ongoing moratorium in Oregon had the same effect as the

prosecutor’s improper argument in Caldwell. Although the trial court informed

the jury that it should assume it’s verdict would be carried out, the mere fact of

the moratorium fatally reduced the gravity of the jury’s decision. Every member

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of the jury was aware that Oregon’s governor had imposed a moratorium on

carrying out death sentences in this state because the trial court instructed them

on its existence during voir dire. Although it did so in the context of advising

them to discount its import, the instruction was like the oft-described instruction

that a jury “forget that it has just seen a white bear.” State v. White, 303 Or 333,

343, 736 P2d 552 (1987). A jury is placed in an impossible position when it is

told to decide whether a human being should die, but that it should disregard the

fact that the chief executive of the state has announced that he will not carry out

such a sentence. That creates, at the very least, the danger that the jury “may

wish to ‘send a message’ of disapproval even though it is not convinced that

death is the appropriate punishment.” Caldwell, 472 US at 347.

Compounding the risk that the jury would believe that it need not fully

grapple with the impact of its decision is the fact that jurors may have been

aware of this court’s decision in Haugen – in which it denied Haugen’s attempts

to reject the governor’s reprieve. That decision received substantial media

attention. See, e.g., Helen Jung, Oregon Supreme Court denies death row

inmate Gary Haugen’s bid for execution, Oregonian, June 20, 2013,

http://www.oregonlive.com/pacific-northwest-

news/index.ssf/2013/06/oregon_supreme_court_decision.html; Jonathan

Cooper, Court upholds governor’s execution delay, Associated Press, June 20,

2013, http://registerguard.com/rg/news/local/30050327-75/death-haugen-

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kitzhaber-governor-penalty.html.csp. Thus, the jury may well have been

actually aware that Haugen’s attempts to force his own execution via litigation

had failed, or at a minimum had reason to know. See

Dungey v Fairview Farms, 205 Or 615, 621, 290 P2d 181 (1955) (“Every

person is presumed to know the law[.]”); Marlin v. T’Vault, 1 Or 77, 78 (1854)

(“Courts proceed upon the presumption that all persons know the law[.]”).

Under those circumstances, no cautionary instruction would suffice to avert the

danger that the jury would find its moral calculation to be lessened.

II. In the alternative, the trial court erred in rejecting defendant’s proposed modifications to its cautionary instruction regarding the moratorium. Even if the trial court could have properly instructed the jury in such a

manner as to eliminate the Caldwell problem, its instruction failed to do so and

it erred in rejecting defendant’s proposed language. The trial court’s instruction

was as follows:

“Some of you may have heard that Governor Kitzhaber has declared a moratorium on the death penalty. In legal terms, what he has done is to grant temporary reprieves of existing death sentences. Those reprieves last only as long as he remains in office. Thus you should assume that death sentences handed down while he is Governor will ultimately be carried out.”

Tr. 1146-48 (italics omitted).

Defendant requested two changes:

1. That the court add “although the Governor has power to grant temporary reprieves he cannot repeal capital punishment, which

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can only be eliminated by the voters amending the Oregon Constitution,”

2. That the court change the words “must assume” to “must conclude”11

The trial court declined to make either change. Tr. 1148-49.

Although defendant’s primary argument is that no instruction would have

sufficiently guarded against the danger to the jury’s decision-making process, it

nevertheless erred in rejecting either or both of those changes.

The first is a correct statement of the law. The Oregon Constitution

provides for the option of a death sentence for aggravated murder. Or. Const.

Art I, s. 40. Amending the constitution requires a vote of the people. Or Const.

Art. XVII, s. 1. The statement also would have assisted the jury by

demonstrating that the moratorium was not and could not become permanent.

In addition, the trial court erred when it declined to instruct the jurors that

they “must conclude” that the sentence would be carried out, and instead

instructed them that they “should assume” that the sentence would be carried

out. The word “should” denotes a preferable outcome, whereas “must” conveys

a mandatory obligation.

“Should” is defined “2 – Used in auxiliary function to express duty,

obligation, necessity, propriety, or expediency[.]” Webster’s Third New Int’l

11 The trial court in fact instructed the jurors that they “should

assume” not that they “must assume.”

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Dictionary 2104 (unabridged ed 2002). “Must,” by contrast, is defined “1 a :

is commanded or requested to * * * b : is urged to : ought by all means to * * *

2 : is compelled by physical necessity to * * * : is required by immediate or

future need or purpose to[.]” Id. at 1492.

Even more seriously, informing the jury that it should “assume” that the

sentence will be carried out lacks the weight and force of informing it that it

must “conclude.” “Assume” means, “5 : to take for granted : accept arbitrarily

: SUPPOSE[.]” Id. at 133. “Conclude,” on the other hand, means “2 : to reach a

final determination about or judgment about : make a decision about : JUDGE,

DECIDE[.]” Id. at 471. Defendant’s proffered changes would have strengthened

the court’s cautionary instruction. Therefore, the court also erred in failing to

make those changes.

SEVENTH ASSIGNMENT OF ERROR

The trial court erred by denying defendant’s motion for a new trial.


While this appeal was pending, the trial court informed the parties by

letter that it had “received information which is inconsistent with the statements

made by one of the alternate jurors during voir dire.” Specifically, the court had

obtained an email written prior to voir dire by courthouse employee Holly

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Moser, who would later become on alternate jury in this case, containing the

following comments:

“This day is bumming me out!! I found out that my jury summons is for the murder trial for Gillette. He is the guy who (with the 2 younger black kids from Portland) killed a boy (and chopped him up in pieces and burned his body) and took his car to Florence to rob a bank. He was out of prison for a couple of years for murder in the 70’s. He needs to die. There is no way I would get on that jury, and not sure I would want to hear the details after reading the search warrants. I will have to defer.”

Moser email, ER 352.

Moser’s email comments were inconsistent with the answers she gave

two months later in voir dire, when she stated that she knew “really nothing”

about the case. Tr. 3467. She said, “We get so many cases in honestly, they’re

all just a case number to me in doing a lot of data entry.” Tr. 3467. She added

that “I’m not sure even what this one is and once I knew that I was – got the

summons, I didn’t even look up anything. I haven’t done anything.” Tr. 3467,

She also stated, “I really, like I said, I really have no idea which case this is.”

Tr. 3467. She continued that, “They all kind of run together, you know” and “I

know the name Taylor, that’s it. That’s really all I know as far as the case.” Id.

Because the appeal was pending when the evidence of potential

juror misconduct surfaced, this court had jurisdiction over the case. On

November 4, 2014, defendant filed a motion asking this court to “order a

limited remand to allow the trial court to conduct a hearing pursuant to

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UTCR 3.120(2)12, and to allow the defense to question the jurors.”

Defendant’s Motion – Limited Remand, Appellate Court File.

This court granted defendant’s request for a remand “limited to the

question whether the alternate juror engaged in juror misconduct and, if she did,

whether her misconduct tainted the other jurors’ consideration of the case.”

Order Allowing Limited Remand, Appellate Court File. This court declined the

state’s request to “impose further limits on the circuit court’s discretion to

conduct the hearing on remand.” Id.

The trial court held a hearing on March 6, 2015, during which it

questioned all jurors, including alternates, with the exception of Moser herself.

At that hearing, several jurors indicated that they did not remember whether or

not Moser had described any knowledge of the case.

Juror Erica Marjama stated that she did not remember whether Moser

mentioned allegations that defendant had been involved in a prior home-

invasion robbery. 3/6/2015 Tr. 66. When questioned whether that was

12 UTCR 3.120(2) provides: “(2) After a sufficient showing to the court and on order of the court, a party may have contact with a juror in the presence of the court and opposing parties when:

“(a) there is a reasonable ground to believe that there has been a mistake in the announcing or recording of a verdict; or

“(b) there is a reasonable ground to believe that a juror or the jury has been guilty of fraud or misconduct sufficient to justify setting aside or modifying the verdict or judgment.”

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something that she would remember if it came up, she stated that she had “no

idea.” 3/6/2015 Tr. 67. She further stated that she did not remember if Moser

had told her that defendant had been involved in uncharged bank robberies.

3/6/2015 Tr. 67. In contrast, she responded that she would remember if Moser

had told her about an alleged confession by A.J. 3/6/2015 Tr. 68. She

also answered “no” when questioned about whether Moser had provided

information about the crimes defendant was charged with or what she thought

should happen to him. 3/6/2015 Tr. 68-69.

Juror Timothy Palmer did not remember whether Moser had described

defendant’s involvement in a home-invasion robbery, but thought he would

remember if she had. 3/6/2015 Tr. 71. He did not remember if she had

described defendant’s involvement in other robberies. 3/6/2015 Tr. 72. He

“would think I would remember her saying something about that, but it doesn’t

come to my mind right now that I heard her say anything like that.” 3/6/2015

Tr. 72.

Other jurors also declined to state unconditionally that Moser had not

provided improper information. Natalie Jenson did not “think” that Moser had

told her about other acts of violence by defendant. 3/6/2015 Tr. 77. She did not

remember Moser telling her anything else about defendant prior to deliberations

and said “I think so” when asked if she would remember. 3/6/2015 Tr. 78-79.

Juror Sharon Hodges stated that she could not recall Moser discussing

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defendant engaging in uncharged bank robberies. 3/6/2015Tr. 97. She said

that she “probably” would remember if it had happened. 3/6/2015 Tr. 97.

Similarly, Juror Destin Ranch stated several times only that Moser had not

made any comments about the case to his “recollection” and said that he

“imagine[d]” that he would recall such comments. 3/6/2015 Tr. 113-14.

Alternate Juror Monique Graves, when asked if Moser had disclosed a

prior robbery by defendant, said “Not that I recall.” 3/6/2015 Tr. 117. She said

“I’m not sure” when asked if she would remember such communication.

3/6/2015 Tr. 117. When asked about Moser commenting on other bank

robberies, she stated that she did not “believe” that Moser had done so, but that

she likely would not remember such a conversation. 3/6/2015 Tr. 118. She also

did not recall Moser describing defendant taking the police to the location

where the victim was buried, but was not sure she would remember such a

conversation. 3/6/2015 Tr. 119. She repeated that she did not “believe” that

Moser had commented on several other matters. 3/6/2015 Tr. 119-20. When

asked if Moser had told her what she believed should happen to defendant,

Graves responded, “I couldn’t say for certain what she said. But I imagine that’s

possible that she would have made a comment about that.” 3/6/2015 Tr. 120.

Following the March 6, 2015, hearing, defendant asked the trial court to

question Moser herself about the alleged misconduct. By letter dated April 3,

2015, the trial denied that request.

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Defendant filed a motion for new trial on the basis of Moser’s

misconduct. Motion for New Trial, ER 353-373. Anticipating the state’s

procedural arguments, defendant contended that this court’s remand order gave

the trial court jurisdiction and that the motion was not untimely. Id. at 6-10. On

the merits, defendant argued that Moser was guilty of misconduct, and that her

misconduct was prejudicial to his right to a fair trial. Defendant asked the court

to vacate the conviction and sentence and order a new trial. Id. at 10-20.

The trial court ruled that this court’s remand order did not give the court

jurisdiction to decide the new trial motion. Alternatively, the court ruled that the

motion was time-barred. For those reasons, the trial court denied the motion

without reaching the merits. Opinion and Order Denying Defendant’s Motion

for New Trial, ER 374-375.

Standard of Review

When a trial court’s ruling on a motion for a new trial is based on an

interpretation of law, this court reviews for legal error. Bennett v. Farmers Ins.

Co. of Oregon, 332 Or 138, 151, 26 P3d 785, 794 (2001). Otherwise, this court

reviews the ruling for abuse of discretion. See Ertsgaard by Ertsgaard v. Beard,

310 Or 486, 492, 800 P2d 759 (1990) (applying standard).

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I. This court’s remand order gave the trial court jurisdiction to decide the new trial motion. The trial court had jurisdiction to consider defendant’s request for a new

trial. Although this court had jurisdiction when defendant filed the motion, it

also had the authority to and in fact did remand this case to the trial court to

investigate the issue of juror misconduct. Moreover, defendant’s motion

seeking limited remand specifically addressed the possibility of seeking a new

trial, asking that “the trial court to hold a hearing pursuant to UTCR 3.120(2) to

ascertain whether a remedy for the misconduct was necessary. See ORCP

64(b)(2) (providing for a new trial when jury misconduct has materially

affected the substantial rights of a party); ORS 136.535(1) (making ORCP 64

applicable to criminal trials).” D. Mot. Limited Remand at 3.

In its response to defendant’s motion seeking remand, the state asked this

court not to give the trial court jurisdiction to consider a motion for new trial,

“Because the time within which the trial court may entertain a motion for new trial has long since expired, a remand to the trial court should be limited only to fact-finding regarding the suspicions involving Ms. Moser, as outlined in defendant’s motion. If defendant believes, based on the findings made by the trial court, that he is entitled to some remedy, then he can raise that claim by some appropriate pre-briefing motion in this court or in an assignment of error in his brief on review. This court should not grant the trial court jurisdiction to grant to defendant any form of affirmative relief.”

Resp. Mot. At 3.

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This court rejected the state’s request to limit the trial court’s

discretion to conduct the hearing. The court ordered,

“Defendant’s motion is granted. The scope of the remand is limited to the question whether the alternate juror engaged in juror misconduct and, if she did, whether her misconduct tainted the other jurors’ consideration of the case. We decline the state’s invitation to impose further limits on the circuit court’s discretion to conduct the hearing on remand. Rather, we leave the conduct of the hearing, in the first instance, to the sound discretion of the trial court.”

Order Granting Limited Remand.

Defendant’s motion for new trial fell squarely within the scope of this

court’s order on remand because it was based on Moser’s misconduct. Thus, the

trial court had jurisdiction to consider the motion, and erred by declining to do

so on that basis.

II. The motion was timely. ORCP 64(F)(1) generally governs the timeliness of a motion for a new

trial. That rule provides:

“F(1) Time of motion; counteraffidavits or counterdeclarations; hearing and determination. A motion to set aside a judgment and for a new trial, with the affidavits or declarations, if any, in support thereof, shall be filed not later than 10 days after the entry of the judgment sought to be set aside, or such further time as the court may allow. When the adverse party is entitled to oppose the motion by counteraffidavits or counterdeclarations, such party shall file the same within 10 days after the filing of the motion, or such further time as the court may allow. The motion shall be heard and determined by the court within 55 days from the time of the entry of the judgment, and not

90

thereafter, and if not so heard and determined within said time, the motion shall conclusively be deemed denied.”

By its text, the rule generally requires a motion to be filed within 10 days

of the entry of a judgment, but that time may be extended “as the court may

allow.” Here, the trial court should have considered the motion, because it was

based upon information not available to defendant at the time of the entry of

judgment: (1) Moser’s email indicating her preconceived belief in defendant’s

guilt and (2) the inability of several other jurors to conclusively state that she

did not comment on those matters prior to deliberations. Defendant could not

ascertain any information about the latter issue until the trial court conducted its

hearing, because he is barred from initiating contact with jurors. See Uniform

Trial Court Rule 3.120(2). The trial court erred by concluding that it could not

extend the time for filing the motion in light of those facts.

Further, this case is unique because, as a capital case, it was on automatic

and direct review in this court when the trial court decided the new trial motion.

Ordinarily, there is a gap between the entry of judgment and the filing of a

notice of appeal. ORCP 64(F)(1) structures the interstitial time between those

events. But in a capital case, this court assumes jurisdiction automatically and

immediately upon the entry of judgment. ORAP 12.10. Thus, there is no period

in which a judgment has been entered but before the appeal begins. For that

reason, strict application of ORCP 64(F)(1) was inappropriate in this case.

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The Court of Appeals has recognized that the time to file a motion for

new trial may be tolled. In Alternative Realty v. Michaels, a party prematurely

filed a notice of appeal while a motion for new trial was still pending. 90 Or

App 280, 287, 753 P2d 419 (1988). The Court of Appeals dismissed the appeal

and then held that the 55-day period had not run during the pendency of the

appeal:

“Because the notice of appeal was filed 30 days after the entry of the judgment, there remain 25 days of the 55–day period during which the trial judge could rule on the motion for a new trial. When the trial court reacquires jurisdiction after issuance of the appellate judgment, it will have that period of time in which to rule. The 30–day period for filing a notice of appeal will commence after entry of the trial court’s order or the expiration of the remaining 25 days, if no order is entered.”

Id.

Here, defendant acknowledges that when he filed the new trial motion,

more than 55 days had elapsed since the trial court reacquired jurisdiction. But

Michaels recognized that the 55-day deadline may be tolled. This court should

hold that the deadline was similarly tolled while the trial court conducted its

investigation into the matter of juror misconduct.

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Finally, the Due Process Clause of the Fourteenth Amendment to the

United States Constitution13 obliged the trial court to consider defendant’s

motion. For the reasons discussed below, Moser’s acts deprived defendant of a

fair trial. The trial court’s rigid application ORCP 64(F)(1) to deny defendant

relief was a due process violation. See State v. Cazares-Mendez, 350 Or 491,

520, 256 P3d 104 (2011) (finding due process violation in application of

hearsay rule when doing so deprived defendant for a fair trial).

III. Defendant is entitled to a new trial because of Moser’s misconduct. ORCP 64B(2) provides, in part:

“A former judgment may be set aside and a new trial granted in an action where there has been a trial by jury on the motion of the party aggrieved for any of the following causes materially affecting the substantial rights of such part:

“* * * * * Misconduct of jury[.]”

ORS 136.535, in turn, provides: “(1) Except that a new trial may not be

granted on application of the state, ORS 19.430 and ORCP 64 A, B and D to G

apply to and regulate new trials in criminal actions.”

13 The Fourteenth Amendment provides, in relevant part,

“All persons born or naturalized in the United States, and subject to the jurisdiction thereof, are citizens of the United States and of the state wherein they reside. No state shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any state deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws.”

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Moreover, UTCR 3.120 provides, in part:

“(1) Except as necessary during trial, and except as provided in subsection (2), parties, witnesses or court employees shall not initiate contact with any juror concerning any case which that juror was sworn to try.

“(2) After a sufficient showing to the court and on order of the court, a party may have contact with a juror in the presence of the court and opposing parties when:

“* * * * *

“(b) There is a reasonable ground to believe that a juror or the jury has been guilty of fraud or misconduct sufficient to justify setting aside or modifying the verdict or judgment.”

Thus, the remedy for prejudicial juror misconduct is to set aside the

verdict or judgment and to conduct a new trial. That remedy gives effect to a

criminal defendant’s right to an impartial jury and to confront witnesses under

Article I, section 11, of the Oregon Constitution and under the Sixth

Amendment to the United States Constitution.14 The United States Supreme

Court has held that “[i]n the constitutional sense, trial by jury in a criminal case

necessarily implies at the very least that the ‘evidence developed’ against a

14 Article I, section 11, of the Oregon Constitution provides in part

that “In all criminal prosecutions, the accused shall have the right to public trial by an impartial jury * * * and * * * to meet the witnesses face to face.”

The Sixth Amendment to the United States Constitution provides that “In all criminal prosecutions, the accused shall enjoy the right to a speedy and public trial, by an impartial jury * * * [and] to be confronted with the witnesses against him[.]”

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defendant shall come from the witness stand in a public courtroom where

there is full judicial protection of the defendant’s right of confrontation, of

cross-examination, and of counsel.” Turner v. State of La., 379 US 466, 472-73,

85 S Ct 546, 13 L Ed 2d 424 (1965).

Juror misconduct subverts those rights when a juror harbors secret bias,

makes untruthful statements during voir dire, is exposed to extrajudicial

materials, or engages in private communications with third parties. Here, an

employee of the court, who was also serving as an alternate juror, possessed

extrajudicial information about the case, and held a preconceived bias against

defendant. The record shows that she made untruthful statements during voir

dire, and that she had the opportunity to contaminate the other jurors with both

her bias and the extrajudicial information. As detailed below, the state failed to

meet its burden of proving that her misconduct was not prejudicial. For that

reason, the trial court’s denial of defendant’s new trial motion deprived

defendant of his right to a fair trial.

A. Moser was biased; in addition, she possessed extrajudicial information derived from “reading the search warrants.”

Moser was unqualified to serve as an alternate juror, for two independent

reasons. First, according to her email, she possessed extrajudicial information

about defendant’s case as a result of having read the search warrants. See

United States v. Keating, 147 F3d 895, 900 (9th Cir 1998) (“A defendant is

95

entitled to a new trial when the jury obtains or uses evidence that has not

been introduced during trial if there is a reasonable possibility that the extrinsic

material could have affected the verdict.”) (internal quotation omitted).

Second, the record shows that she was biased. In that regard, the courts

have identified and distinguished three forms of juror bias: (1) bias

demonstrated by a juror’s responses on voir dire; (2) “actual bias,” which stems

from a pre-set disposition not to decide an issue impartially; and (3) implied (or

presumptive) bias, which may exist in exceptional circumstances where, for

example, a prospective juror has a relationship to the crime itself or to someone

involved in a trial, “or has repeatedly lied about a material fact to get on the

jury.” Fields v. Brown, 503 F3d 755, 766 (9th Cir 2007) (emphasis added).

1. Moser’s email shows actual bias. Article I, section 11, of the Oregon Constitution and the Sixth

Amendment to the United States Constitution guarantee the right to an impartial

jury during criminal proceedings. “To protect that right, the trial court may

excuse a prospective juror for actual bias.” State v. McAnulty, 356 Or 432, 462,

338 P3d 653, 673 (2014). See ORCP 57 D(1)(g) (challenge for cause may be

taken on grounds of actual bias); ORS 136.210(1) (making ORCP 57 D(1)(g)

applicable to criminal trials). “In assessing whether a prospective juror should

be excused for actual bias, the question is whether the juror’s ‘ideas or opinions

would impair substantially his or her performance of the duties of a juror to

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decide the case fairly and impartially on the evidence presented in court.’”

McAnulty, 356 Or at 462 (quoting State v. Fanus, 336 Or 63, 83, 79 P3d 847

(2003)). “The touchstone of impartiality is * * * the juror’s ability to decide the

matter with an open mind—that is, the juror’s ability to set aside any

preexisting opinions or impressions and to decide the case impartially.” State v.

Evans, 344 Or 358, 362, 182 P3d 175 (2008).

In this case, the attitudes expressed in Moser’s email showed actual bias.

Two months prior to being questioned for voir dire she had already formed an

opinion that defendant “needs to die.” ER 352, Moser Email. To say the least,

that attitude would have substantially impaired her ability to consider the full

range possible penalties at issue here. See v. Illinois, 504 US 719, 729-

30, 112 S Ct 2222, 119 L Ed 2d 492 (1992) (error to empanel jury containing

even a single juror who will vote for death sentence in all instances).

Furthermore, Moser’s knowledge of the case from reading the search warrants

tends to show that she would not have decided the case fairly and impartially on

the evidence presented in court. Because Moser had actual bias towards

defendant, she should have never served in any capacity on the jury in this case.

2. Moser’s dishonesty during voir dire establishes a presumption of bias.

This court has held that a presumption of bias exists in exceptional

circumstances which are likely to compromise the jurors’ impartiality. See, e.g.,

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State v. Cavan, 337 Or 433, 437, 98 P3d 381 (2004) (holding a defendant’s

trial in prison impermissible). Likewise, the Ninth Circuit has found

presumptive bias where a juror repeatedly lied about a material fact to get on

the jury. Dyer v. Calderon, 151 F3d 970, 984(9th Cir 1998); Green v. White,

232 F3d 671 (9th Cir 2000). “A juror * * * who lies materially and repeatedly

in response to legitimate inquiries about her background introduces destructive

uncertainties into the process * * * [A] perjured juror is unfit to serve even in

the absence of * * * vindictive bias.” Dyer, 151 F3d at 983.

Here, Moser’s pattern of misbehavior created “destructive uncertainties”

about the fairness of the trial. In her email, she stated “[t]here is no way I would

get on that jury, and not sure I would want to hear the details after reading the

search warrants. I will have to defer.” Rather than being truthful in voir dire,

knowing she would have been excused, she apparently repeatedly lied to stay

on the jury. Her actions, coupled with her prior statement that defendant “needs

to die,” support an inference that she intended to stay on the jury in order to

vote for death. Her repeated lies about material matters to get on the jury

present the sort of exceptional circumstances in which her bias can be

presumed.

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3. Moser made untruthful statements during voir dire and a correct response would have resulted in a challenge for cause.

As just discussed, a juror’s untruthful answers during voir dire may

justify a new trial by establishing a presumption of the juror’s bias. In addition,

a party may also be entitled to a new trial when a juror has given untruthful

answers and truthful ones would have been a basis for a challenge for cause.

McDonough Power Equip., Inc. v. Greenwood, 464 US 548, 556, 104 S Ct 845,

850, 78 L Ed 2d 663 (1984).

Here, Moser failed to respond honestly to a material question on voir

dire. She was asked whether, in her capacity as a clerk at the courthouse, she

had any knowledge about the case, formed any opinions about this case, or what

the outcome of the case should be. Although she denied having any knowledge

or opinions about the case, her email shows that answer to have been untruthful:

“He is the guy who (with the 2 younger black kids from Portland) killed a boy

(and chopped him up in pieces and burned his body) and took his car to

Florence to rob a bank. He was out of prison for a couple of years for murder in

the 70’s. He needs to die.” Moreover, a correct response would have provided a

basis for a challenge for cause, given her knowledge about the case and her

expression of bias. Because truthful answers would have been grounds for a

challenge for cause, Moser’s misconduct in providing untruthful answers

justifies a new trial.

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B. The state failed to prove that Moser’s bias and extrajudicial information did not taint the jury.

The prosecution thus has the burden of proving that improper influences,

such as those present here, did not affect a trial. As the United States Supreme

Court has explained,

“In a criminal case, any private communication, contact, or tampering directly or indirectly, with a juror during a trial about the matter pending before the jury is, for obvious reasons, deemed presumptively prejudicial, if not made in pursuance of known rules of the court and the instructions and directions of the court made during the trial, with full knowledge of the parties. The presumption is not conclusive, but the burden rests heavily upon the Government to establish, after notice to and hearing of the defendant, that such contact with the juror was harmless to the defendant.

Remmer v. United States, 347 US 227, 229, 74 S Ct 450, 451, 98 L Ed 654

(1954) (emphasis added).

Thus, “[i]f there is a ‘reasonable possibility’ that a jury’s verdict has been

affected by material not properly admitted as evidence, the criminal defendant

is entitled to a new trial.” United States v. Davis, 15 F3d 1393, 1412 (7th Cir

1994). See also Dickson v. Sullivan, 849 F2d 403, 405 (9th Cir 1988) (quoting

Marino v. Vasquez, 812 F2d 499, 504 (9th Cir1987)) (“A defendant is entitled

to a new trial when the jury obtains or uses evidence that has not been

introduced during trial if there is ‘a reasonable possibility that the extrinsic

material could have affected the verdict.’”). Once a defendant has shown that a

juror may have been improperly influenced, it becomes incumbent on the trial

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court to “ascertain whether the juror was or was not tainted.” Davis, 15 F3d

at 1412.

Defendant acknowledges that Moser did not participate in the jury’s

formal deliberations, because she was an alternate juror. Even so, the state

failed to meet its burden of showing that she did not taint the verdicts. At the

hearing, some jurors testified that they could not remember whether Moser had

communicated extrajudicial information to them. Although several believed

they likely would remember, that is insufficient to affirmatively establish that

such information did not affect the verdicts. Tellingly, alternate juror Graves

stated, “I couldn’t say for certain what she said. But I imagine that’s possible

that she would have made a comment about that.” Tr. 120. Of course, jurors are

barred from discussing the case prior to deliberation. But Graves’s comment

establishes that Moser may not have adhered to that prohibition. Furthermore,

this court should presume that Moser failed to follow her instructions, given the

overwhelming evidence of her dishonesty in voir dire.

Nor would Moser, as an alternate, have been kept apart from the other

jurors during defendant’s trial. The trial court did not disclose to the alternate

jurors that they were, in fact, alternates until the close of the case. Tr. 1026

(“[A]re both sides in agreement to that not disclosing to the alternates that they

are alternates[?]”); Tr. 5805 (“All right, I’ll note for the record no jurors

indicated that they have reason to believe they would not be able to participate

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in deliberations. Therefore, I have to inform Ms. Moser, Mr. Kitchener, Ms.

Graves, and Mr. Ranch, you will not be participating in deliberations

at this point in time[.]”).

Moreover, the risk that Moser tainted the jury is enhanced by her status

as a court employee. Because of her job, the jury may have regarded Moser as

being authoritative or well-informed about legal matters. See Parker v.

Gladden, 385 US 363, 87 S Ct 468, 17 L Ed 2d 420 (1966) (noting that the

deliberations were more likely to have been influenced, where the source of the

improper influence was a court employee, whose opinion would carry “great

weight”).

This case stands in stark contrast to State v. Pratt, 316 Or 561,853 P2d

827 (1993). There, one of the alternate jurors made several comments to other

jurors and to court staff relating information about the case that was not in

evidence. The alternate also made comments demonstrating bias. Id. at 573-74.

After the trial court questioned the jurors, the defendant moved for a mistrial.

The trial court denied the motion, because it was able to conclude from its

examination of the jurors that the alternate’s remarks did not introduce any

extraneous information or bias into the trial. Id.

Here, unlike in Pratt, the questioning was inconclusive as to whether

Moser’s bias and extrajudicial information reached the jury. As noted, a number

of the jurors were not able to testify that she had not shared improper

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information with them. Further, unlike in Pratt, the trial court was unable to

make a prompt investigation into the matter, when their memories would have

been fresh. Because the record shows a reasonable possibility that Moser

tainted the jury, the state failed to meet its burden of disproving prejudice.

In sum, Moser’s email shows that she possessed extrajudicial information

about the case and that she was strongly biased against defendant. Indeed,

before the trial, she had already expressed her belief that he “needs to die.”

After “reading the warrants” and having formed such a strong prejudice, Moser

lied during voir dire about those matters, knowing that the truth would have

disqualified her. In light of her powerful animus toward defendant, which was

apparently strong enough to motivate her to risk lying to the court under oath,

the possibility that Moser shared her extrajudicial information and her bias with

the jury is inescapable. The circumstances present an intolerable risk that her

misconduct tainted the jury and affected the verdicts, thereby depriving

defendant of his trial rights. Because that risk came to light after the verdicts,

the only way for the trial court to protect defendant’s rights was to grant

defendant’s motion for a new trial. It erred by refusing to do so.

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EIGHTH THROUGH THIRTIETH ASSIGNMENTS OF ERROR

The trial court erred when it declined to provide an instruction requiring

the jury to concur on a specific theory of robbery for each of Counts 1-10, 13,

and 19-30.


Although defendant filed a written request for a number of special jury

instructions, the request for the jury instruction at issue in these assignments of

error was made orally.

During the discussion of the instructions for Count 1, the first robbery

count, defendant stated:

“[W]e’d request an instruction related to the robbery similar to our special instructions 9 and 10,16 that related to the kidnap,


Review, and Argument sections of these Assignments of Error because they present essentially the same legal question. ORAP 5.45(6).

16 Defendant’s requested jury instructions 9-10 were concurrence instructions for the kidnapping charge:

“(9) [To be read following the standard instruction on kidnapping] The state has alleged two separate theories in support of the charge of kidnapping. In order to find him guilty of kidnapping, ten or more must agree that he was guilty of taking Mr. without consent from one place to another or ten or more must agree that he was guilty of secretly confining Mr.

or ten or more must agree on both

“(10) If less than ten of you agree on a particular theory you may not convict him of kidnapping based on that theory.”

Trial Court File.

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and that’s because of the two different theories that are alleged here, and we believe a jury has to make a concurrence finding regarding which of the theories it is using.”

Tr. 5504.

The trial court asked defendant whether this court’s decision in State v.

Pipkin, 354 Or 513, 316 P3d 255 (2013), defeated his argument. Defendant

responded that Pipkin applied to the “enter or remain unlawfully” element in

burglary, and that

“This is carved out differently, where these are actually elements. They’re not circumstances of how something happened, but they’re elements that the State has to prove and a jury has to find. And we believe they’re – they need to be presented to the jury and found concurrently.”

Tr. 5504.

The trial court further addressed Pipkin and then asked defendant:

“So I’m looking at the statute, and the language that you’re referring to is the language in Robbery III that says, okay, to be Robbery in the Third Degree you have to commit or attempt to commit a theft or unauthorized use of a vehicle, and you have to threaten the immediate use of force upon another and you have to have the intent of either preventing or overcoming resistance to the taking of property or retention thereof or compelling the owner of the property or person to deliver the property to engage in other conduct which might aid in the commission or theft or unauthorized use of a vehicle.

“So why are those two things not the same – those last two things just the intent element to be proved either way?”

Tr. 5506.

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Defendant responded,

“We think they’re separately laid out that makes them elements, Your Honor. And we think it was the legislative intent to create it that way. It’s not just circumstances.

“You know, the State could have – the State could elect. The State could have charged it differently with just (a) or just (b), but they chose to lump everything together in one thing.

“And so all that gets presented to the jury. And we believe that the jury has to find one of those things or both. They can find both. But without a concurrence, we don’t know what they’re finding.”

Tr. 5506-07.

Defendant acknowledged that he was not aware of a case expressly

providing that a jury concurrence instruction was required for the two theories

of robbery. Tr. 5509.

The court then denied defendant’s request, but entertained the idea of

asking the jury, on a special verdict from, whether they did, in fact, concur on

the theory of robbery:

“All right. So without – it strikes me that the language, preventing or overcoming resistance to taking of property or retention thereof immediately after or compelling the owner of such property or person to deliver property to engage in other conduct that might aid in the commission of the theft of the unauthorized – of theft or unauthorized use of a vehicle, are alternative ways of proving an intent element.

“Why is it that the person is threatening physical force, and that they are the same element. And therefore, a Boots instruction is not required for those two instructions.

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“Having said that, I may hedge my bets and have a special verdict and ask the jury if ten or more agree to the two, just to avoid the problem on appeal and make it clear.

“But – would anyone have any opposition to my doing that, putting in those special verdict forms that ten or more of you agree that he did it to overcome resistance?

“Do ten or more of you agree that he did it to compel?”

Tr. 5509-10.

Defendant did not oppose the special verdict question, but the state did:

“And I mean, I sympathize with the Court and with the situation as far as what are we supposed to do. Just the State’s perspective of this is one in which I’m resistant to agree to something I’ve never had in years trying robbery cases. And Boots has been around for a while, and I haven’t had this come up, requested, or been the subject of appeal. Of course, you know, famous last words.”

Tr. 5510.

The court denied defendant’s requested instruction:

“Okay. So here’s the thing, is I agree with [the state] on the Boots instruction. I don’t think that it’s necessary for the jury to do – make it be ten or more agree on which of these two theories. At least the State – the defense has not proven to me that’s what the legislature intended.

“I think this as Pipkin refers to and inclusive use of the word ‘or’ as opposed to an exclusive use of the word ‘or,’ and therefore I’m going to not give the Boots instruction on that.”

Tr. 5512.

The trial court did not give defendant’s requested instruction for any of

the robbery counts. Tr. 5699-5733. Nor did the court ultimately include the

robbery concurrence issue on the verdict form. Corrected Verdict, Trial Court

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File. Defendant excepted to the trial court’s failure to give those

instructions. Tr. 5807.


Whether the court should have given a jury concurrence instruction is

reviewed for errors of law. See State v. Lotches, 331 Or 455, 467-72, 17 P3d

1045 (2000) (applying standard). Whether a statute “exceeds the permissible

limits in defining criminal conduct” by containing more than one offense in

violation of Due Process is a question of law. Schad v Arizona, 501 US 624,

631, 111 S Ct 2491, 115 L Ed 2d 555 (1991) (applying standard).

Combined Argument

I. The court was required to instruct the jury that it had to concur on which factual scenarios constituted robbery as alleged in Counts 1-10, 13, and 19-30.

The trial court erred in failing to give a jury concurrence instruction for

each of the 23 counts of robbery alleged by the state. On every one of those

counts, the trial court instructed the jury on two possible theories under which it

could find defendant guilty:

“[that he] acted with the intent of (a) preventing or overcoming resistance to his taking of the property or retention of the property immediately after the taking; or (b) compelling the owner of the property or another person to deliver the property or engage in conduct that might aid in the commission of theft.”

Tr. 5700 (parentheticals in original, emphasis added).

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The court did not instruct the jury that it was required to concur on

whether defendant was guilty under (a), the preventing or overcoming

resistance theory, or (b), the compelling the owner or another person theory.

The failure to so instruct the jury requires a new trial.

Both the Oregon Constitution and the United States Constitution require

jurors to agree on the facts constituting the crime in order to convict a

defendant. State v. Rodriguez-Castillo, 210 Or App 479, 496-97, 151 P3d 931

(2007), rev’d on other grounds, 345 Or 39 (2008). For crimes other than first-

degree murder, Article 1, section 11, of the Oregon Constitution17 requires that

17 Article I, Section 11, of the Oregon Constitution provides that:

“In all criminal prosecutions, the accused shall have the right to public trial by an impartial jury in the county in which the offense shall have been committed; to be heard by himself and counsel; to demand the nature and cause of the accusation against him, and to have a copy thereof; to meet the witnesses face to face, and to have compulsory process for obtaining witnesses in his favor; provided, however, that any accused person, in other than capital cases, and with the consent of the trial judge, may elect to waive trial by jury and consent to be tried by the judge of the court alone, such election to be in writing; provided, however, that in the circuit court ten members of the jury may render a verdict of guilty or not guilty, save and except a verdict of guilty of first degree murder, which shall be found only by a unanimous verdict, and not otherwise; provided further, that the existing laws and constitutional provisions relative to criminal prosecutions shall be continued and remain in effect as to all prosecutions for crimes committed before the taking effect of this amendment.”

109

ten members of the jury agree on their verdict. The Sixth Amendment to the

United States Constitution sets out the right to trial by jury.18

In State v. Boots, 308 Or 371, 780 P2d 725 (1989), this court held that a

trial court erred by instructing a jury that it need not agree unanimously on the

particular aggravating factor to convict for aggravated murder. In rejecting the

ruling of a contrary authority, the court reasoned:

“The state particularly relies on Holland v. State, 91 Wis 2d 134, 280 NW 2d 288 (1979), cert den 445 US 931, 100 S Ct 1320, 63 L Ed 2d 764 (1980). The state quotes a passage to the effect that a rule requiring unanimous jury agreement on ‘the manner in which the defendant participated in the crime’ would ‘permit the guilty defendant to escape accountability under the law because jurors could not unanimously choose beyond a reasonable doubt which of several alternate ways the defendant actually participated, even though all agree that he was, in fact, a participant.’ 280 NW 2d at 293. The quotation is not persuasive. It seems questionable to characterize a person as ‘the guilty defendant’ who will ‘escape accountability’ when the issue for the jury is whether every element of the person’s guilt has been proved. * * * Nor is the question whether a jury could ‘choose’ between different ways in which a defendant participated in the crime. It is not a matter of ‘choosing’ but of factfinding. If more than one way is charged and

18 The Sixth Amendment to the United States Constitution provides that:

“In all criminal prosecutions, the accused shall enjoy the right to a speedy and public trial, by an impartial jury of the State and district wherein the crime shall have been committed, which district shall have been previously ascertained by law, and to be informed of the nature and cause of the accusation; to be confronted with the witnesses against him; to have compulsory process for obtaining witnesses in his favor, and to have the Assistance of Counsel for his defense.”

110

proved to the jury’s unanimous satisfaction, the jury need not ‘choose’ and there is no difficulty. The problem arises precisely when none of the alternative ways has been proved to the satisfaction of all jurors, when one or more jurors is in doubt about each of the alternatives charged.”

Boots, 308 Or at 378-79.

The trial court in Boots positively instructed the jury that it need not

unanimously agree on a fact needed to convict, and this court that to be error. Id

at 381. In Lotches, however, this court held that it is also error for a court to fail

to instruct the jury about the concurrence requirement when the evidence

permits conviction without such agreement. 331 Or at 469. There, the court

found a Boots error in an aggravated murder case in which an indictment

alleged three counts of aggravated murder by intentional murder of the same

victim (1) in the course of an attempted robbery; (2) in the course of an

attempted second-degree kidnapping; and (3) in an effort to conceal the

perpetrator of an attempted murder. Those counts in Lotches did not further

specify the underlying felonies. Id. at 462-63.

The court in Lotches found that there was evidence of two possible

attempted robberies, two possible attempted kidnappings, and two possible

attempted murders. Id. at 470-71. The court held that the jury instructions

violated the jury concurrence requirement, because the jury was not positively

instructed to find unanimously a particular attempted robbery, attempted

kidnapping, or attempted murder. Id. at 468-69.

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II. The state’s two theories of robbery involved separate elements and necessitated a concurrence instruction.

Determining whether a court must provide a jury concurrence instruction

requires this court to “determine the legislature’s intent in enacting the

underlying criminal statute.” State v. Pipkin, 354 Or 513, 521, 316 P3d 255

(2013). If the legislature intended “that each alternative means of committing

the crime is a separate element, then Boots teaches that jury concurrence

follows as a result of that legislative determination.” Id. at 521-22. By contrast,

if “the legislature intended to provide two ways of proving a single element,

then the underlying statute does not require jury concurrence, and the question

that remains is whether the legislature’s choice violates either the state or

federal constitution.” Id. at 522. Thus, if the legislature intends that a crime

contains two separate elements, the jury must be instructed that it must concur

on a single theory. But if the legislature intends that a crime contain multiple

ways of committing a single element, concurrence may nevertheless be required

if the state or federal constitution so demands.

The initial inquiry is one of statutory construction. This court analyzed

the legislature’s intended meaning of the phrase “enter or remain unlawfully,”

defined in ORS 164.205(3), under the burglary statutes. It rejected the

defendant’s reliance on the presence of the word “or” to argue that a

concurrence instruction was required, and held that in ORS 164.205(3) the

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legislature used the word “in its inclusive sense; that is, because unlawfully

entering on private premises will almost always entail unlawfully remaining

there as well, a person can commit burglary by entering unlawfully or by

remaining unlawfully or by entering and remaining unlawfully.” Id. at 523. In

other words, this court held, “the text of ORS 164.205(3) implies that entering

and remaining unlawfully are two alternative and sometimes complementary

ways of proving a defendant’s unlawful presence in a dwelling that, when

accompanied by an intent to commit a crime therein, will constitute first-degree

burglary.” Id. Thus, “entering and remaining unlawfully are interchangeable

and often overlapping findings from which the jury can conclude that the

defendant’s presence in a dwelling was unlawful.” Id. at 524.

Here, by contrast, “Preventing or overcoming resistance to the taking of

the property or to retention thereof immediately after the taking” and

“Compelling the owner of such property or another person to deliver the

property or to engage in other conduct which might aid in the commission of

the theft or unauthorized use of a vehicle” are not the same element. First, and

perhaps most crucially, the text of the statute itself demonstrates that each is a

distinct element. Unlike “enter or remain unlawfully,” analyzed by this court in

Pipkin, the two provisions in the robbery statute are separate subsections – ORS

164.395(1)(a) and (1)(b). The subsections are divided by a semicolon at the end

of subsection (1)(a), denoting separate entries in a list. See State v Parkins, 346

113

Or 333, 351, 211 P3d 262 (2009) (noting significance, in merger context, of

“legislature’s decision to list * * * different elements in separate

subparagraphs”).

Legislative history supports defendant’s interpretation. Unlike in Pipkin,

where this court noted that “enter or remain” was a single, generally

overlapping term, the legislature described scenarios where a defendant’s

conduct violates only one or the other of ORS 164.395(1)(a) or (1)(b). The

commentary to the Oregon Criminal Code revision describes that distinction.

“Under present Oregon law robbery, either armed or unarmed, can only be consummated through an assault plus a taking of property from the person assaulted. The proposed article will change the law in this regard, because the language of §148 is broad enough to cover instances in which property is take from someone other than the person threatened. For example: A forces V to telephone his wife and direct her to take money from V’s safe and deliver it at a named time and place to A’s accomplice. Under the traditional ‘person or presence’ test this probably would not be robbery, but will constitute robbery under §148 (1)(b). Furthermore, the Commission’s proposal eliminates the apparent existing requirement that the assault be directed at the victim of the robbery. * * * The language ‘uses or threatens the immediate use of physical force upon another person’ encompasses the type of case in which the force or threat is directed at someone other than the owner of the property. A forces V to open the store safe by threatening to harm V’s employee if V refuses. As noted by the Michigan revisers, the important consideration should be whether the actor by the threat he uses intends to coerce the owner into parting with his property and whether under the circumstances the threat is or might be effective. It will not be necessary, either, to direct the threat or forces toward a person ‘present’ in order to commit robbery. Included within the ambit of the proposed revision are situations such as this: A enters V’s store at the same time A’s accomplice, B, forces his way into V’s home. B

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telephones V and threatens immediate harm to his family unless V opens the store safe for A.”

Commentary to Oregon Criminal Code of 1971 191, § 150 (1975 ed.).

Similarly, the plain text of ORS 164.395 supports defendant’s arguments.

Subsections (1) and (2) are logically distinct ways of committing the crime.

Subsection (1) defines a traditional robbery: using or threatening force to

overcome resistance to taking property. Subsection (2), by contrast, requires a

defendant to compel the owner of a property to deliver that property to engage

in any other conduct to aid in the commission of a theft or unauthorized use of a

vehicle. Subsection (1) criminalizes the use of force in prevention of one kind

of conduct: resistance. Subsection (2) criminalizes the use of force to compel

conduct. They are separate and distinct elements.

Because the legislature intended to enact two distinct ways of committing

robbery in the third degree, the crime which formed the basis of the robbery

allegations here, the trial court was required to provide defendant’s requested

concurrence instructions.

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III. The failure to give a jury concurrence instruction violated the Due Process Clause of the Fourteenth Amendment.19

The failure to require jury concurrence strikes at the very heart of the

Sixth Amendment-required burden of proof in criminal cases: proof beyond a

reasonable doubt. Lotches, 331 Or at 468 (quoting United States v. Gipson, 553

F2d 453, 455-56 (5th Cir 1977)). As the United States Supreme Court explained

in Jackson v. Virginia, 443 US 307, 314 99 S Ct 2781, 61 L Ed 2d 560 (1979):

“[T]he due process guaranteed by the Fourteenth Amendment [mandates] that no person shall be made to suffer the onus of a criminal conviction except upon sufficient proof—defined as evidence necessary to convince a trier of fact beyond a reasonable doubt of the existence of every element of the offense.”

Id. at 316. See also Schad v. Arizona, 501 US 624, 633, 111 S Ct 2491, 115 L

Ed 2d 555 (1991) (opinion of Souter, J) (“Thus it is an assumption of our

system of criminal justice so rooted in the traditions and conscience of our

people as to be ranked as fundamental * * * that no person may be punished

criminally save upon proof of some specific illegal conduct.” (citations omitted;

emphasis added)).

In this case the failure to give a jury concurrence instruction permitted

the jury to convict defendant of many counts of first and second degree robbery

19 The Fourteenth Amendment provides in relevant part that

“No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any State deprive any person of life, liberty, or property, without due process of law * * *.”

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without any 10 jurors necessarily finding the same specific acts that

constituted the charges. Some jurors may have believed that “acted with the

intent of preventing or overcoming resistance to his taking of the property or

retention of the property immediately after the taking, and some that he acted to

compel “the owner of the property or another person to deliver the property or

engage in conduct that might aid in the commission of theft.” By way of

example, Creswell bank employee Catherine testified both that

defendant ordered her to place money in a bag, which she did, and that ordered

everyone down and to stay stationary so he could flee. Tr. 3894, 3903. In the

light most favorable to giving the instructions, it is possible that different jurors

believed that defendant committed the robbery as to in two different

ways: compelling her to provide him with property, and overcoming her

potential resistance to his taking and retaining the property by ordering her

down.

Thus, it is possible that defendant’s conviction arose without the entire

jury necessarily reaching a constitutionally sufficient agreement that any

particular act of robbery occurred. The Due Process Clause of the Fourteenth

Amendment does not countenance such a “verdict,” and a judgment of

conviction based on such a verdict cannot stand. Defendant respectfully asks

this court to vacate the judgment of conviction and remand for a new trial.

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THIRTY-FIRST ASSIGNMENT OF ERROR

The trial court erred when it denied defendant’s demurrer to Count 12,

kidnapping in the first degree.

THIRTY-SECOND ASSIGNMENT OF ERROR


aggravated murder.

THIRTY-THIRD ASSIGNMENT OF ERROR


aggravated murder.


Defendant filed written demurrers and memoranda of law to Count 12,

kidnapping in the first degree, and Counts 1521 and 16, aggravated murder, each

advancing the same argument. Copies of those demurrers and memoranda are

attached at ER 265-268, 269-272, and 273-276, respectively.

20 Defendant combines the Preservation of Error, Standard of Review, and Argument sections because they present essentially the same legal question. ORAP 5.45(6).

21 Defendant’s written demurrer and memorandum, as well as the parties’ and trial court’s discussion, of law refer to “Count 14.” However, the demurrer quotes the text of Count 15, and the substance of defendant’s argument relates to that count. It appears that the references to Count 14 were unintentional and that the parties were addressing Count 15. Thus, defendant will refer to the demurrer as challenging Count 15.

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As to Count 12, defendant argued in the memorandum, inter alia,

that:

“Within count 12 the state has charged multiple offenses. In that single count the defendant is charged with two different types of kidnappings. Because the kidnappings have different elements they are separate offenses. Because each of those offenses is contained within a single, count the charges are not ‘separately stated’ ORS 135.630(3).”

ER 266.

As to Count 15, defendant argued:

“Within count [15], the state has charged multiple offenses. In that single count, the defendant is charged with two different aggravated murders: one committed in the course of committing kidnapping in the first degree as alleged in count 2 and one for committing robbery in the first degree as alleged in count 13. First, the kidnapping allegation from count 12 alleges two different offenses, which is the subject of a second demurrer. and because this count adopts the language from that count, it is subject to a demurrer. Moreover. by alleging one offense based on the underlying offense of robbery and one on kidnapping. Count 15 alleges two offenses. Because each of those offenses is contained within a single count, the charges are not ‘separately stated.’ ORS 135.630(3).”

ER 271.

The parties addressed defendant’s demurrers at a pretrial hearing.

Defendant did not add additional argument to the demurrer on Count 14, but the

prosecutor responded to it as follows:

“This is simply pleading alternatives in the same count, and there’s plenty jurisprudence supporting this. It can be addressed and we would expect it would be and we would be joining, I’m sure, with Defense in asking for Booth[sic: Boots] instructions and a very clear verdict form which lays out these alternatives, for any

119

alternative all 12 must agree, that will be made abundantly clear, and it’s a way, frankly, avoiding pleading another 12 to 15 additional counts which would by necessary [sic] merge in the end anyway. So that’s our position with demurrer, and the other two, which are the same issue essentially.”

Tr. 1001.

The court denied the demurrer as to Count 15. The court similarly denied

the remaining demurrers. Tr. 1002-03. The trial court clarified that it was

denying the demurrers on the merits and was not ruling them to have been

untimely filed. Tr. 1002. The court entered written orders denying each

demurrer without elaboration. ER 277-279.


This court does not appear to have expressly stated the standard of review

for demurrers to charging instruments. The Court of Appeals has stated that it

“reviews a trial court’s ruling on a demurrer to a charging instrument for errors

of law.” State v. Cervantes, 232 Or App 567, 580, 223 P3d 425 (2009).

Combined Argument

The trial court erred when it denied defendant’s demurrers to Counts 12,

15, and 16, because each of those counts improperly charged multiple offenses.

ORS 135.630 provides, in a relevant part:

“(1) If the accusatory instrument is an indictment, that the grand jury by which it was found had no legal authority to inquire

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into the crime charged because the same is not triable within the county;

“(2) If the accusatory instrument is an indictment, that it does not substantially conform to the requirements of ORS 132.510 to 132.560, 135.713, 135.715, 135.717 to 135.737, 135.740 and 135.743;

“(3) That the accusatory instrument charges more than one offense not separately stated;”

(emphasis added).

In each of Counts 12, 15, and 16, the state charged multiple offenses. In

Count 12, the state charged defendant with two different types of kidnapping.

Because the kidnappings have different elements they are separate offenses.

Because each of those offenses was contained within a single count, the charges

were not separately stated ORS 135.630(3).

Kidnapping in the second degree, a necessary element of kidnapping in

the first degree, with which defendant was charged, is defined as follows:

“(1) A person commits the crime of kidnapping in the second degree if, with intent to interfere substantially with another’s personal liberty, and without consent or legal authority, the person:

“(a) Takes the person from one place to another; or

“(b) Secretly confines the person in a place where the person is not likely to be found.”

In Count 12, the state alleged both the elements from subsection (a) and

the elements from subsection (b). However, because the elements are different,

each theory of kidnapping constitutes a different offense. Indeed, the trial court

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recognized that it was required to give a concurrence instruction on those

differing theories of kidnapping, instructing the jury: “If you find that the State

proved beyond a reasonable doubt elements 1, 2, 4 and 5, then 10 of the 12

jurors may either find that the State proved beyond a reasonable doubt elements

3(a) or 3(b) or that the State has proved all elements beyond a reasonable

doubt.” Tr. 5709

The trial court was correct to give that instruction because subsections (a)

and (b) constitute separate offenses. That is so even if, charged separately, they

would be subject to merger. And therefore, while they would merge following

guilty verdicts if charged separately, nevertheless they may not be charged in a

single count because they are separate offenses.

In contrast, different theories that arise from a single subsection of a

statute do not constitute separate offenses. Thus, for example a, person is guilty

of the crime of identity theft as statutorily defined at ORS 165.800 if the person,

with the intent to deceive or to defraud, obtains possesses, transfers, creates,

utters, or converts to the person’s own use the personal identification of another

person. “Transfers,” “creates,” “utters,” and “converts” are simply different

ways of proving the same element as opposed to being different elements.

This court explained the historical roots of that distinction in Pipkin:

“Oregon cases before 1934 point in the same direction. See State v. Laundy, 103 Or 443, 466, 204 P 958, 206 P 290 (1922) (explaining that, ‘where a single offense may be committed by

122

several means[,] it may be charged in a single count to have been so committed, if the ways or means are not repugnant’). This court explained as early as 1876 that, ‘[w]hen [a] statute makes it a crime to do this or that, mentioning several things disjunctively, the indictment may, as a general rule, embrace the whole in a single count * * *.’ State v. Carr, 6 Or 133, 134–35 (1876). In Oregon, as in the rest of the country, the jury could return a general verdict on a single count even when the indictment specified alternative means of committing the crime charged in that count. Oregon Code, title XII, ch IX, § 941 (1930); see Joel Prentiss Bishop, 1 New Criminal Procedure § 436 (1895) (‘[T]he indictment on [statutes that provide for multiple ways of committing a single crime] may allege, in a single count, that the defendant did as many of the forbidden things as the pleader chooses, * * * and it will be established at the trial by proof of any of them.’).”

354 Or 513 (brackets and ellipses in Pipkin).

In contrast, the elements of kidnapping based on taking from one place to

another are different than the elements of secretly confining, which is why the

two theories are under two different statutes. Moreover, they are “repugnant,”

that is if the kidnapping is based on movement from one place to another such

movement is at odds with the allegation of secretly confining, which implies no

movement.

One analog to this case, considered by the Court of Appeals, is State v.

Sweet, 46 Or App 31, 610 P2d 310 (1980), in which the indictment alleged a

single count of criminal mischief but within the count the complaint alleged

different pieces of property that had been damaged. The Sweet court found that

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this was enough when construing the complaint against the pleader to

constitute two separate offenses and therefore to violate ORS 135.630(3).

Count 15 similarly charged multiple offenses. In Count 15, the state

charged defendant with murder committed in the course of committing

kidnapping in the first degree as alleged in Count 12 and committing robbery in

the first degree as alleged in Count 13. There are several problems with the

manner in which those counts were charged. First, the kidnapping allegation

from Count 12 itself alleged two different offenses, as discussed above.

Because the indictment on Count 15 adopted the language from that count, it

was also subject to a demurrer. Moreover, by alleging murder based on the

underlying offense of robbery and kidnapping, Count 15 alleges two offenses

for an additional reason. Because each of those offenses is contained within a

single count, the charges are not “separately stated.” ORS 135.630(3).

Similarly, in Count 16, the state charged defendant with a variety of

theories of aggravated murder: one committed in an effort to conceal a

kidnapping, one for attempting to conceal a robbery of Celestino and

one for concealing a variety of crimes resulting from the robbery of Siuslaw

Bank. Because each of those offenses is contained within a single count, the

charges are not separately stated ORS 135.630(3). The trial court erred when it

failed to grant defendant’s demurrer.

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The trial court’s failure to grant defendant’s demurrer also violated

his rights under the United States Constitution. The U.S. Constitution, Sixth

Amendment states: “In all criminal prosecutions, the accused shall enjoy the

right * * * to be informed of the nature and cause of the accusation * * *.” One

court has explained that

“Important policy considerations underlie the rule that two or more distinct crimes should not be alleged in a single count of an indictment. If an indictment is duplicitous, a general verdict of guilty will not reveal whether the jury found defendant guilty of only one crime and not the other, or guilty of both. See Gerberding v. United States, 471 F2d 55, 59 (8th Cir. 1973). Moreover, a guilty verdict on a duplicitous indictment does not indicate whether the jury found defendant guilty without having reached an unanimous verdict on the commission of a particular offense. Thus, the prohibition of duplicity is said to implicate a defendant’s rights to notice of the charge against him, to a unanimous verdict, to appropriate sentencing and to protection against double jeopardy in a subsequent prosecution.”

United States v. Murray, 618 F2d 892, 896 (2d Cir 1980).

THIRTY-FOURTH ASSIGNMENT OF ERROR22

The trial court erred when it denied defendant’s motion to sever Counts

1-10, 11, 19-30, and 31.


Review, and Argument sections because they present essentially the same legal question. ORAP 5.45(6).

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THIRTY- FIFTH ASSIGNMENT OF ERROR The trial court erred when it denied defendant’s demurrer in which he

argued that the charges were improperly joined.

Combined Preservation of Error

Pretrial defendant filed a demurrer and a motion to sever advancing

related arguments.

In the demurrer, defendant wrote:

“The state has charged numerous crimes in the indictment from multiple incident dates.

“Counts 1-10 of the indictment regard an alleged bank robbery in Creswell Oregon on or about June 8, 2012. Count 11 accuses defendant of felon in possession of a firearm from the same date.

“Counts 12-18 of the indictment charge defendant with various theories of aggravated murder and other charges stemming from an alleged August 3, 2012, incident in Eugene, Oregon.

“Counts 19-30 of the indictment pertain to an alleged bank robbery in Mapleton, Oregon, or about August 3, 2012. Count 31 of the indictment accuses defendant of felon in possession of a firearm, also from August 3.

“The referenced Counts of the indictment are not of the same or similar character. Furthermore, the alleged crimes are not from the same criminal episode.”

Defendant’s Demurrer. ER 19-20.

In defendant’s Motion to Sever he incorporated the arguments made in

his demurrer and further argued, inter alia, that “[t]he crimes charged must be

severed because they are not similar in character, not based upon the same

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transaction or occurrence, and do not constitute a common scheme or plan”

and that “[t]he charges must be severed since the evidence would not be

mutually admissible in separate trials and the evidence is not sufficiently simple

and distinct.” ER 42-43.

The state filed a combined written response to defendant’s demurrer and

motion to sever. ER 106-110. As to the demurrer, the state argued that “[t]he

Joinder is proper and the Indictment is therefore not subject to action on this

Demurrer for the reasons stated in the argument on the Motion to Sever below.”

As to the motion to sever, the state first provided a brief overview of the

facts of the various criminal episodes and then argued that “The crimes charged

in the Creswell Bank Robbery and the Mapleton Bank Robbery are of the same

character and exceed the standards for permissible joinder.”

The parties addressed defendant’s motions at a pretrial hearing. Tr. 765.

Defendant described his filings:

“Your Honor, we pled those first as a demurrer, and then, without waiving the argument that a demurrer is the proper vehicle, then had a separate pleading as a Motion to Sever, the reason that we argued first as a demurrer is under 135.630, and is set forth in our motion, Your Honor.

“Then, alternatively, again, without waiving those arguments, we did file the Motion to Sever. So even though there’s substantial overlap, they’re different vehicles. And we just wanted to make sure that the Court recognized that for purposes of preservation for the record, Your Honor.”

Tr. 766.

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While arguing the motions, defendant asserted that the indictment

was inadequate because it did not allege the basis of joinder:

“Your Honor, [Counts] #1 through #10, #1 through #11, arise out of the alleged robbery, bank robbery, in Creswell on June 8, 2012. Counts #1-#10 specifically pertain to that alleged incident. Count #11 is the one which raises felon in possession of a firearm from that date, Your Honor. Just so we’re all on the same page, Your Honor.

“The counts #12 through #18 of the indictment refer to the allegations surrounding the homicide, Your Honor. Counts #19 through #30 pertain to the alleged bank robbery in Mapleton, and #31, Your Honor, which is a separate charge of felon in possession, also arises from that alleged incident.

“First of all, Your Honor, the Court should take notice of the indictment – we’re asking the Court to take notice of the indictment – does not allege that the June 8 incident is a separate transaction – I’m sorry – it does not allege it’s a part of the same incident, or part of a continuing scheme, or part of the same course of conduct as the August 3 incident.”

Tr. 767 (emphasis added, bracketed text in transcript).

The trial court asked defendant if there was such a pleading requirement,

and he responded,

“Well, I guess our position is that it should be, as a demurrer, Your Honor, that the Court should be limited to the four corners of the indictment. But it’s not alleged in here that it’s part of a continuing act or transaction, part of a similar scheme, part of a continuing course of conduct. And those arguments are set forth in both the demurrer and the motion to sever, Your Honor.”

Tr. 768. Defendant then further argued that the allegations related to the June 8

incident should be removed from the indictment due to the “substantial

prejudice generated by allowing evidence of the June 8 incident, the Creswell

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matter, in evidence with respect to the homicide and the Mapleton robbery.”

Tr. 768.

The trial court asked defendant, “isn’t it the State’s whole theory, is that

your guy robs banks and these are all parts of the bank robbery thing, that the

murder was to facilitate the vehicle to hit a bank?” Tr. 768.

Defendant responded that, “the Creswell matter is not part of the scheme

to rob the Mapleton bank, and it’s not part of any scheme to commit a

homicide, or to plan a homicide, or not part of a continuing course of conduct.

The evidence from the Creswell matter is not necessary to prove the other

incidents.” Tr. 769.

The court then asked defendant whether the two robberies contained a

sufficiently similar “m.o.,” or modus operandi. Tr. 769. Defendant responded

by articulating substantial differences between the two robberies. Tr. 769.

Ultimately, the trial court took the issue under advisement and issued

separate written orders denying the demurrer and the motion to sever. ER 256-

257, 258-260.


This court reviews whether a trial court erred in denying a motion to

sever for errors of law. State v. Barone, 329 Or 210, 217, 986 P2d 5 (1999).

129

This court does not appear to have expressly stated the standard of

review for demurrers to charging instruments. The Court of Appeals has stated

that it “reviews a trial court’s ruling on a demurrer to a charging instrument for

errors of law.” State v. Cervantes, 232 Or App 567, 580, 223 P3d 425 (2009).

Combined Argument

I. The trial court should have granted defendant’s motion to sever and his demurrer because evidence relating to the various acts were not cross-admissible and defendant was prejudiced by their inclusion. Defendant was charged in a single indictment with crimes that occurred

over a period of several months. The indictment alleged a bank robbery that

occurred in June of 2012 and a subsequent kidnapping, robbery, murder, and

separate bank robbery in August of 2012. The trial court should have dismissed

the indictment or, in the alternative, granted defendant’s motion to sever and

allowed him to try those charges separately.

ORS 132.560 provides, in part,

“(1) A charging instrument must charge but one offense, and in one form only, except that:

“(a) Where the offense may be committed by the use of different means, the charging instrument may allege the means in the alternative.

“(b) Two or more offenses may be charged in the same charging instrument in a separate count for each offense if the offenses charged are alleged to have been committed by the same person or persons and are:

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“(A) Of the same or similar character;

“(B) Based on the same act or transaction; or

“(C) Based on two or more acts or transactions connected together or constituting parts of a common scheme or plan.

“(2) If two or more charging instruments are found in circumstances described in subsection (1)(b) of this section, the court may order them to be consolidated.

“(3) If it appears, upon motion, that the state or defendant is substantially prejudiced by a joinder of offenses under subsection (1) or (2) of this section, the court may order an election or separate trials of counts or provide whatever other relief justice requires.”

The Court of Appeals has detailed the framework that a reviewing court

may consider when determining whether severance of joined offenses is

required.

“Whether the joinder of charges substantially prejudices a particular defendant involves a case-specific assessment of the charges and the facts alleged to support them. The mere assertion that evidence relating to some charges will influence the factfinder’s consideration of other charges is insufficient. Rather, the court’s analysis must focus on ‘any circumstance’ that impairs the defendant’s right to a fair trial, such as, for example, a defendant’s ‘claim that joinder would deprive him of constitutional or statutory protections such as those in the Oregon Evidence Code against the admission of evidence.’ When evidence pertaining to the various charges would be mutually admissible in separate trials or is sufficiently simple and distinct to mitigate the dangers created by joinder, substantial prejudice has not been established. Also relevant is the probable effectiveness of limiting instructions given to the jury by the court.”

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State v Luers, 211 Or App 34, 43, 153 P3d 688 (2007), adh’d to as modified

on recons, 213 Or App 389 (2007) (italics in original; internal citations

omitted). In short, the trial court must ensure that the factfinder decides the

charges on a “dispassionate consideration of the evidence rather than bias,

emotion, or other improper criteria.” State v. Miller, 327 Or 622, 628, 969 P2d

1006 (1998). Defendant has the burden of establishing substantial prejudice. Id.

at 626.

Joinder of separate offenses violates the due process guaranteed by the

Fourteenth Amendment to the United States Constitution if it renders

petitioner’s trial fundamentally unfair. Featherstone v. Estelle, 948 F2d 1497,

1503 (9th Cir 1991). A trial is fundamentally unfair when the improper joinder

has “a substantial and injurious effect or influence in determining the jury’s

verdict.” Sandoval v. Calderon, 241 F3d 765, 772 (9th Cir 2000), cert den 534

US 943 (2001).

The risk of undue prejudice may arise when the evidence substantiating

the separate offenses would not be cross-admissible had the counts been tried

separately. Bean v. Calderon, 163 F3d 1073, 1084 (9th Cir 1998), cert den, 528

US 922 (1999); Cf. Davis v. Woodford, 384 F3d 628, 638-39 (9th Cir 2004),

cert dismissed, 545 US 1165 (2005) (cross-admissibility of evidence

significantly reduces potential prejudice). The danger is that the jurors will

convict a defendant based, not upon the evidence, but upon their perception of

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the defendant’s bad character. See Bean, 163 F3d at 1084 (joinder of

offenses that are not cross-admissible tends to prejudice the jurors’ perceptions

of the defendant and of the strength of the evidence on both sides of the case);

Lucero v. Kerby, 133 F3d 1299, 1314 (10th Cir 1998), cert den, 523 US 1110

(1998) (joinder may result in prejudice because “the jury may use the evidence

of one of the crimes charged to infer a criminal disposition on the part of the

defendant from which it found his guilt of the other crime or crimes charged”).

The risk of prejudice caused by joinder is greatly reduced when the

evidence of each crime is simple and distinct and an instruction directs the jury

to consider each count separately. Bean, 163 F3d at 1084-85; Davis, 384 F3d at

639.

In this case, failure to grant defendant’s demurrer or sever the trial of the

separate incidents substantially prejudiced defendant by depriving him of the

protection of a provision of the Oregon Evidence Code, specifically, OEC

404(3). In so doing, it rendered defendant’s trial fundamentally unfair in

violation of due process.

OEC 404(3) provides:

“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.”

133

OEC 404(3) bars the state from introducing evidence of other crimes

committed by the accused unless the evidence is introduced for some relevant

purpose other than to suggest that, because the accused is a person of criminal

character, it is more probable that the accused committed the crime for which

he or she is on trial. State v. Johnson, 313 Or 189, 194, 832 P2d 443 (1992).

OEC 404(3) codified the common law tradition of protecting a defendant from

the risk of being convicted on the basis of his bad character. State v. Johns, 301

Or 535, 725 P2d 312 (1986).

One possible theory of admissibility floated by the trial court is that the

state could introduce the evidence of the two bank robberies in separate trials to

show a common modus operandi between the two sets of crimes. To prove

identity based on modus operandi, the prosecution must establish that there is a

very high degree of similarity between the different crimes, and that the

methodology is attributable to only one criminal. Johnson, 313 Or at 196; see

also, State v. Johns, 301 Or 535, 551, 725 P2d 312 (1986). However, as

defendant argued below, the record does not support that basis. When seeking

to prove a defendant’s identity by establishing that he acted pursuant to a “plan”

or a “signature crime” the proponent of other act evidence faces a high burden.

This court has recognized that bad act evidence may be relevant to prove

identity. However,

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“[b]efore evidence of other crimes offered to prove identity based on modus operandi is admissible, ‘[m]uch more is demanded than the mere repeated commission of crimes of the same class, such as repeated murders, robberies or rapes.’ * * * The prosecution must establish by a preponderance of the evidence that (1) there is a very high degree of similarity between the charged and uncharged crimes; and (2) the methodology is attributable to only one criminal, that is, the methodology is distinctive so as to earmark the acts as the handiwork of the accused.”

State v. Pinnell, 311 Or 98, 109-110, 806 P2d 110 (1991) (quoting McCormick

on Evidence 559–60, § 190 (3d ed 1984)). In other words, “[t]o be admissible

on the issue of identity the crimes must be nearly identical.” Pratt, 309 Or at

210 n 4.

The Pinnell court noted that a “classic example” of a “modus operandi

having a signature quality is the ‘mark of Zorro.’” 311 Or at 110 n 18. A Texas

court suggested another illustration: “suppose that three bank robberies are

committed over a four-year period in different cities in which the robber used

an antique silver crossbow. This scenario is so unusual that it is highly likely

that each robbery was committed by the same person using the same antique

silver crossbow.” Segundo v. State, 270 SW 3d 79, 88 (Tex Crim App, 2008).

The proponent of the evidence needs to do more than merely demonstrate

that the past and current acts are similar. It must show that that similarity is

indicative of a common plan or modus operandi. In order to infer a plan or

design from prior similar acts, the proponent of the evidence must show “not

merely a similarity in the results, but such a concurrence of common features

135

that the various acts are naturally to be explained as caused by a general

plan of which they are the individual manifestations.” State v. Leistiko, 352 Or

172, 188, 282 P3d 857 (2012) (quoting John Henry Wigmore, 2 Evidence §

304, 249 (Chadbourne rev. 1979) (emphasis in Wigmore)).

The necessity of the high level of congruence is obvious. The mere

existence of two similar crimes – even two similar crimes – does nothing to

establish that a sole perpetrator is behind both crimes. Instead, the crimes must

possess a “signature,” or some component or aspect that serves to winnow the

list of potential perpetrators from the population as a whole. The presence of the

mark of Zorro indicates not just “Zorro committed this act” but also “another

person did not.”

The difference between sets of crimes that merely bear a similarity to one

another and sets of crimes that bear a clear signature is crucial. If the state

merely presents evidence that a person has, in the past, committed a crime very

similar to the one with which he is now charged, it invites the possibility that

the jury will do precisely what it may not: convict the defendant based on his

criminal propensity. See, e.g., Leistiko, 352 Or at 188 (“We recognize that

inferring a plan or design from prior similar acts to prove that a defendant acted

consistently with that plan is vulnerable to the claim that the prior bad acts are

merely propensity.”). That vulnerability can be averted by requiring not just

evidence of similar offenses, but similar offenses that bear some hallmark that

136

eliminates the likelihood that anyone else committed the crime. See State v.

Langley, 314 Or 511, 840 P2d 691 (1992) (noting that similarities between two

murders were “few and not of a kind to distinguish these cases from some other

homicides” (emphasis added)).

Here, the two bank robberies contained some broad similarities. Both

were takeover-style robberies perpetrated by armed men demanding money.

However, the differences are also many. The Creswell robbery was undertaken

by a single man – defendant. The Mapleton robbery had two active robbers –

defendant and Defendant escaped on a bicycle in the Creswell Robbery,

he and left Mapleton on foot. Moreover, even if the crimes did not have

obvious differences, a takeover-style robbery is not, in and of itself, a “signature

crime” such as to exclude other perpetrators and establish that it must have been

defendant – and only defendant – who could have committed such an offense.

The crimes are simply not distinct enough to allow the cross-admissibility of

evidence to establish identity via modus operandi.

II. The trial court should have granted defendant’s demurrer because the state failed to allege the basis of joinder in the indictment. When ruling on a demurrer, a trial court is bound by the allegations on

the face of the indictment. State v. Norton, 9 Or App 595, 598, 497 P2d 680

(1972); see also State v. Barker, 140 Or App 82, 84, 914 P2d 11, rev den, 323

Or 265 (1996) (holding that argument regarding expected evidence at trial is

137

“premature and does not provide a basis for sustaining a demurrer”). An

indictment is sufficient if it tracks the language of the statute. State v.

Huennekens, 245 Or 150, 154, 420 P2d 384 (1966).

In Huennekens, this court considered whether an indictment could

survive a demurrer on the grounds that the two charges it alleged (sodomy and

rape) were improperly joined. 245 Or at 153-54. The court examined only the

face of the indictment, which included an express allegation that the sodomy

charge “occurred as part of the same act and transaction as the rape.” Id. at 154.

Given that allegation, the court concluded that the indictment was sufficient,

because “it does not appear on the face of the indictment that the two crimes

charged could not be a part of the same transaction.” Id. at 154.

Similarly, in State v. Stuart, 250 Or 303, 306, 442 P2d 231 (1968), the

court recognized, “the obvious truth that if multiple crimes charged in one

indictment could not have been part of the same act or transaction the

indictment is defective.”23

23 The prior version of the joinder statute at issue in Stuart and

Huennekens permitted joinder only if the charges were part of the “same act or transaction.” See ORS 132.560 (1965), amended by Or Laws 1989, ch 842, § 1. The legislature has since added two additional bases for joining charges. The legislature has not, however, changed the demurrer statute requirement that the facts demonstrating proper joinder be apparent from the face of the indictment. See ORS 135.630.

138

Consistently with those decisions, the Court of Appeals concluded in

Norton that the trial court erred in allowing the defendant’s demurrer, because

the indictment expressly “allege[d] that both counts arose out of the same

transaction and the acts alleged in each count could in fact have been committed

as part of the same transaction.” 9 Or App at 682. Likewise, in State v.

Fitzgerald, 267 Or 266, 273, 516 P2d 1280 (1973), the court held, “[I]n view of

the allegation in the indictment that the unauthorized use of the vehicle was a

part of the same transaction as the escape, we think the trial judge properly

overruled the demurrer.”

In sum, an indictment charging more than one offense is subject to

demurrer if it does not appear from the face of the indictment that the charges

are properly joined under ORS 132.560. When joinder is based on ORS

132.560(1)(b)(C), to survive demurrer the indictment must expressly allege that

the charged offenses are based on two or more acts or transactions connected

together or constituting parts of a common scheme or plan, or the indictment

must make those facts otherwise apparent.

Here, unlike in Norton, Fitzgerald, and Huennekens, the indictment does

not expressly allege that the joined offenses were either (1) of the same or

similar character, (2) based on the same act or transaction, or (3) based on two

or more acts or transactions connected together or constituting parts of a

common scheme or plan. See Indictment at ER 11-17. Rather, the indictment

139

merely lists each offense without stating that any of the charges are

sufficiently similar or connected. Thus, the indictment on its face fails to meet

the joinder requirements of ORS 132.560(1)(b).

Defendant argued at the pretrial hearing that the indictment was defective

because it did not allege the facts, within the “four corners,” that allowed for

joinder of various charges. Pressed by the trial court, defendant was not able to

cite a case requiring such facts to be explicitly pleaded. However, the Oregon

Court of Appeals has subsequently adopted defendant’s position, holding

“In summary, we conclude that, both before and after the 1989 amendment of ORS 132.560, the state has been required to allege in the charging instrument the basis for the joinder of the crimes that are charged in it, whether by alleging the basis for joinder in the language of the joinder statute or by alleging facts sufficient to establish compliance with the joinder statute.”

State v. Poston, 277 Or App 137, 144–45, 370 P3d 904 (2016). This court has

not yet considered the issue presented in Poston, but should adopt the same

outcome for the reasons asserted above.

The trial court erred in denying defendant’s demurrer and motion to

sever. As to the motion, it erred in denying it because defendant was prejudiced

by the fact that he faced unrelated charges – and all the evidence pertinent to

those charges – when he should have received separate trials. As to the

demurrer, this court should reverse both due to the prejudice and because the

state failed to allege the facts supporting joinder in the indictment.

140

THIRTY-SIXTH ASSIGNMENT OF ERROR The trial court erred when it denied defendant’s motion to suppress

defendant’s statements.


Following defendant’s arrest, detectives Ferguson and Donaca

interviewed him about the crimes charged in this case. During that

conversation, defendant repeatedly invoked his right to counsel.

Defendant moved to suppress his statements and asked the trial court for

an “order suppressing the statements of the defendant and/or confessions of the

accused and the fruits thereof[.]” ER 65-66. He asserted that defendant’s

statements were obtained in violation of ORS 131.605-626, ORS 810.410,

Article I, section 12 of the Oregon Constitution, and the Fifth, Sixth, and

Fourteenth Amendments to the United States Constitution. Id.

The state filed a lengthy response arguing that defendant was

“sophisticated” and discussing his criminal history in depth. ER 129. The state

addressed defendant’s mid-interview assertion, “Need a lawyer,” and argued

that defendant was “selectively” or “partially” invoking the right to counsel

only as to one subject – his friends. ER 137. Regarding defendant’s later

question about whether he needed a lawyer, the state argued that “defendant’s

reference to an attorney was ambiguous and he initiated communication with a

141

question after [detective] Donaca tells him that getting a lawyer was his

decision. The defendant was thereby indicating his desire to continue without a

lawyer.” ER 143.

The trial court held a hearing and took testimony from the officers who

interrogated defendant, detectives Ferguson and Donaca. Tr.26, 528. The trial

court issued written findings of fact, the relevant portions of which defendant

reproduces here. Given the centrality of the precise words spoken during that

encounter, defendant quotes the trial court’s findings of fact at length.

“At 9:30 am on August 8, 2012, David Ray Taylor was arrested by the EPD SWAT team. At the time of his arrest he was armed with a 44 revolver. After he was arrested and before he was transported, Mr. Taylor was advised of his Miranda rights by EPD Officer Warren. Mr. Taylor acknowledged he understood those rights. He was then transferred to the Eugene Police Station and placed in an interview room. The interview was recorded via audio and video recording

“Initially Detective Ferguson alone spoke with David Taylor. Detective Ferguson began the interview by informing Defendant of his Miranda Rights which Mr. Taylor acknowledges. Detective Ferguson also notified Mr. Taylor that the interview was being recorded.”

“As the interview continued, there are several instances when Mr. Taylor makes what his counsel now say are invocations either of his right to remain silent or his right to counsel. I set forth below transcripts of crucial portions of the interview.24 Those instances are as follows:

“(first mention of lawyer)

24 The initials used in the transcripts are as follows: T = David

Taylor, F = Detective Ferguson, D = Detective Donaca.

142

“F: We’re still being recorded …

“T: That’s fine.

“F: as before.

“T: If I feel I need to have an attorney present I’ll say so.

“F: Ok. Alright. This part’s easy. Can you identify some of these folks for me so I can make sure we’re talking about the same people?

“T: That’s Wretha.

“F: That’s Wretha, ok.

“F: You mind (tries to hand Taylor a pen to write the name on the picture).

“T: No, no (says something unintelligible but won’t take the pen)

“T: Why is that, why?

“F: Because I’ve been talking about some people earlier and said I knew them, but I want to make sure the same people I said I knew are the same people you said you knew.

“T: Uh hmm.

“F: That’s all (tries to say something else but is cutoff by Taylor)

“T: Because if I’m if I’m identifying … do I need a lawyer right now? Because if I’m identifying people that have been arrested for something I’m not going to do so.

“F: These people have not been arrested.

“T: Are they going to be arrested?

“F: I don’t know.

“T: Need a lawyer. I … I … these are friends of mine god damn it.

143

“F: Okay.

“T: These are friends of mine. I’m not going to jeopardize my friends.

“F: Okay.

“T: Can we talk about something else?

“F: We can talk about something else, don’t talk about your friends, we won’t talk about your friends.

“T: Ok. I don’t want to talk about it, don’t want to talk about my friends.

“F: I should have known better because when I talked to you earlier you said [unintelligible] those are your friends.

“T: Yes, sir.

“F: My only intent on this was to make sure we were talking about the same people but we won’t talk about them anymore.

“T: Thank you.

“F: Fair enough?

“T: Yes, sir.

“F: Ok. Can I talk to you without a lawyer yet?

“T: Yeah, we can talk without a lawyer again. (laughing)

“F: I just wanted to be sure, you know.

“T: Not my friends… no, but yeah, yeah…

“While Mr. Taylor told the detectives he wanted an attorney if he was going to be identifying or discussing his friends, he did not identify for the detectives who his friends were. Later in the conversation Detective Donaca asks Mr. Taylor if he has been up to Portland recently. Mr. Taylor responds that he has and that he stayed with Toni. It is only after Mr. Taylor spontaneously brings up Toni’s name that Detective Donaca clarifies that it’s Toni

144

Furthermore, at no point during this conversation does Mr. Taylor state that Toni is a friend of that he does not wish to speak about her. When asked if Toni is a friend, he says no, she is one of his brothers and sisters. The conversation continues, Mr. Taylor mentions the names of some other people he knows in Portland, but there is no real discussion of who these people are or whether or not they are his friends. Throughout the conversation Mr. Taylor mentions Wretha but never indicates that she is one of the friends he does not want to talk about. Finally, towards the end of the time period indicated by defense counsel, Detective Donaca asks Mr. Taylor if anyone has visited him in Eugene recently. This brings about a discussion of Sadie and her boyfriend’s visit. Mr. Taylor indicates that Sadie is Toni’s niece, but never says that she is a friend or that he does not want to talk about her. At first he doesn’t disclose who Sadie’s boyfriend is, but directs Detective Donaca to ask Sadie. However, Mr. Taylor then mentions the name AJ in relation to Sadie’s visit and then confirms for Detective Donaca that AJ is in fact Sadie’s boyfriend. Mr. Taylor states that he does not know AJ well, and that he has only met him this one time. Again, Mr. Taylor never says AJ or Sadie are his friends or that he doesn’t want to talk about them.

* * * * *

“(second mention of a lawyer)

“T: I can’t talk to you about nothing I don’t remember sir, do I need to lawyer up?

“D: I don’t know. That’s a decision you have to make. If…if…

“T: What happened in my house sir?

“D: Well if you didn’t see anything then there’s nothing to talk about. But if you witnessed something if something bad happened that you didn’t want to have happen, now would be the time to tell me.

“T: I didn’t see nothin’ happen and I want to know what happened in my house the other night.

* * * * *

145

“(third mention of a lawyer)

“D: Do you value life at all?

“T: Yes I do. Yes I do. I value life immensely. That’s why I try to tell people to stay the fuck away, back up.

“D: So, anybody threaten your family or you or AJ?

“T: No, not that I am aware of, not that I was aware of.

“D: OK.

“T: You really think [unintelligible] I was into?

“D: You know I know.

“T: I know that you know something. I don’t know and I want to know, so you tell me what I don’t know.

“D: You know about the murder that happened.

“T: I don’t know about no murder.

“D: Yeah you do.

“T: OK, I need to lawyer up, (slams table) Fuck if you’re saying that, if we can’t have a decent conversation, then lawyer up, now.

“D: Alright.

“T: Told him how it is going to be, going be.

“D: For me, part of having a decent conversation was having an honest conversation.

“T: You saying I am a liar?

“D: Yes sir, I am.

“T: OK, alright …

“D: Yeah.

“T: Then we are done.

146

“D: OK.

“The detectives then leave the room and return approximately 45 minutes later and have the following exchange with Mr. Taylor:

“(invocation of right to remain silent)

“D: So, David I want to apologize to you whether you accept it or not is up to you.

“T: I won’t accept it, no.

“D: Ok, well earlier you said …

T: I ain’t that easy

D: Alright, earlier you said …

“T: I ain’t got nothing else to say.

“D: You wanted to have a decent conversation. Do you want to know what other people said about you? You said you wanted to know what was being said about you.

“T: Yeah, I ain’t got nothin’ else to say.

“D: Ok, so you don’t want to know what other people said about you? I’m willing to show you if you want to see. If that’s a decent conversation.

“F: That’s what you asked for, David.

“T: Alright. (shakes Donaca’s hand) We’re good? Alright. (shakes Ferguson’s hand)

“D: You ok with that?

“T: I’m ok with that.

ER 242-246. (internal citations omitted).

The trial court issued a separate written order granting, in part, and

denying, in part, defendant’s motion to suppress his statements. ER 225-232.

147

As to defendant’s first request for an attorney, which came at the

point in the interview when Detective Ferguson asked defendant to identify

some people in photographs, the trial court ruled that defendant’s invocation

was “conditional and therefore equivocal and Detective Ferguson had a right to

inquire.” ER 228. Therefore, the court held, Ferguson had a right to inquire into

the invocation, but defendant resumed speaking before the officer had a chance

to inquire. Id. Further, the court held, even if the invocation had been

unequivocal, his later statement that he was willing to talk about other subjects

rendered it equivocal and required further inquiry. Id.

Defendant’s second request for an attorney occurred when

“Detective Donaca confronts Mr. Taylor about knowing about the murder, which Mr. Taylor denies * * *. When Detective Donaca disputes that assertion, Mr. Taylor says ‘OK, I need to lawyer up. (slams table) Fuck, if you’re saying that, if we can’t have a decent conversation, then lawyer up, now.’”

ER 229.

The trial court found this statement to be “equivocal” because

defendant’s “statements could mean either ‘I want a lawyer’ or ‘I want a

lawyer if we can’t have what I think is a decent conversation.’” Id. However,

after the detective left and returned to apologize and attempt to clarify

defendant’s request, the trial court found that defendant unambiguously invoked

his right to remain silent. Id. The trial court suppressed all subsequent

statements. ER 231.

148

Standard of Review

“What transpired during a custodial interrogation, including what a defendant said or did not say, is a question of fact. We are bound by the trial court’s findings of fact if they are supported by evidence in the record, although ‘we assess anew whether th[ose] facts suffice to meet constitutional standards.’ State v. James, 339 Or 476, 481, 123 P3d 251 (2005). That is, whether a defendant’s statements amounted to an unequivocal invocation of the right against self-incrimination, an equivocal invocation, or no invocation at all, is a question of law. State v. Terry, 333 Or 163, 172, 37 P3d 157 (2001), cert den, 536 US 910, 122 S Ct 2368, 153 L Ed 2d 189 (2002).”

State v. Avila-Nava, 356 Or 600, 609, 341 P3d 714 (2014).

Argument

I. The trial court erred in failing to suppress all of defendant’s statements made after he invoked his right to counsel. Article I, section 12, of the Oregon Constitution and the Fifth

Amendment to the federal constitution both protect against compelled self-

incrimination.25

25 Article I, section 12, of the Oregon Constitution provides in

relevant part: “No person shall * * * be compelled in any criminal prosecution to testify against himself.”

The Fifth Amendment to the United States Constitution provides, in relevant part: “No person * * * shall be compelled in any criminal case to be a witness against himself.” The Fifth Amendment privilege against self-incrimination is made applicable to the states through the Due Process Clause of the Fourteenth Amendment. Malloy v. Hogan, 378 US 1, 8, 84 S Ct 1489, 12 L Ed 2d 653 (1964).

149

In Miranda v. Arizona, 384 US 436, 473-74, 86 S Ct 1602, 16 L Ed

2d 694 (1966), the Supreme Court set out the requisite procedures to guarantee

that right. A person must:

“be warned prior to any questioning that he has the right to remain silent, that anything he says can be used against him in a court of law, that he has the right to the presence of an attorney, and that if he cannot afford an attorney one will be appointed for him prior to any questioning if he so desires.”

Id. at 479; see also State v. Vondehn, 348 Or 462, 474, 236 P3d 691 (2010)

(“Article I, section 12, requires that the police inform a person subjected to

custodial interrogation that he or she has a right to remain silent and to consult

with counsel and that any statements that the person makes may be used against

the person in a criminal prosecution.”).

Furthermore, police must honor that right by ceasing interrogation when

a person invokes the right to remain silent:

“Once warnings have been given, the subsequent procedure is clear. If the individual indicates in any manner, at any time prior to or during questioning, that he wishes to remain silent, the interrogation must cease. At this point he has shown that he intends to exercise his Fifth Amendment privilege; any statement taken after the person invokes his privilege cannot be other than the product of compulsion, subtle or otherwise. Without the right to cut off questioning, the setting of in-custody interrogation operates on the individual to overcome free choice in producing a statement after the privilege has been once invoked.”

Id. at 473-74 (footnote omitted); see also State v. Davis, 350 Or 440, 459, 256

P3d 1075 (2011) (“if there is a right to remain silent that is guaranteed by

150

Article I, section 12, it is a right to insist that the police refrain from

interrogation after a person who is in custody or otherwise in compelling

circumstances has invoked the right to remain silent”).

Once a person in custody expresses an intent to exercise the right to

remain silent, police must “scrupulously” honor that right by refraining from

engaging in conduct that would induce him to give up that right. Miranda, 384

US at 479.

Notably, the “right to cut off questioning” is derivative of the right to

remain silent, in the same way as is the Fifth Amendment right to counsel. See

id. (“Without the right to cut off questioning, the setting of in-custody

interrogation operates on the individual to overcome free choice in producing a

statement after the privilege has been once invoked.”); Id. at 469 (“the right to

have counsel present at the interrogation is indispensable to the protection of

the Fifth Amendment privilege” to “assure that the individual’s right to choose

between silence and speech remains unfettered throughout the interrogation

process”); State v. Scott, 343 Or 195, 200, 166 P3d 528 (2007) (“The [Article I,

section 12,] right against self-incrimination includes a derivative right to

counsel during custodial interrogation.”). Thus, the primary right to be

protected is the right to remain silent; the right to cut off questioning and the

right to counsel are means of providing that protection.

151

On the other hand, a person may knowingly and intelligently waive

the right to remain silent by voluntarily speaking with police after receiving

Miranda warnings. Miranda, 384 US at 479; see State v. Meade, 327 Or 335,

339-41, 963 P2d 656 (1998) (holding that the defendant, without prompting

from the police, initiated further conversation that evinced a willingness and a

desire for a generalized discussion about the investigation); State v. Matt, 251

Or 134, 137-38, 444 P2d 914, 915 (1968) (holding that “[a]ny clear and

unambiguous conduct by a person who has been advised of his rights which

indicates his willingness to answer questions without a lawyer is surely

sufficient” to waive the right to counsel).

Under Article I, section 12, the police must give a defendant who is in

custody or compelling circumstances Miranda-like warnings prior to

questioning. State v. Smith, 310 Or 1, 7, 791 P2d 836 (1990); State v. Magee,

304 Or 261-65, 744 P2d 250 (1987). If the person makes an unequivocal

request to speak to an attorney or unequivocally invokes the right to remain

silent, the police must accede to the request and cease all questioning. See State

v. Montez, 309 Or 564, 572, 789 P2d 1352 (1990). However, if the person’s

request or invocation is equivocal, the police may ask follow-up questions to

clarify whether the person intended to invoke his rights. See State v. Meade,

327 Or 335, 339, 963 P2d 656 (1998).

152

Thus, if defendant unambiguously asserted his right to counsel, the

officers had no right to follow up or clarify his request. “In determining whether

the defendant unequivocally invoked his or her rights, ‘interpretation is only

required where the defendant’s words, understood as ordinary people would

understand them, are ambiguous.’” State v Avila-Nava, 356 Or 600, 609, 341

P3d 714 (2014) (quoting Connecticut v. Barrett, 479 US 523, 529, 107 S Ct

828, 93 L Ed 2d 920 (1987); accord State v. Kell, 303 Or 89, 99, 734 P2d 334

(1987)).

Here, the trial court first erred when it determined that defendant’s first

invocation of his right to counsel was equivocal. That invocation took place

when detective Ferguson asked defendant to identify photographs of people and

defendant responded, “Need a lawyer. I … I … these are friends of mine god

damn it.” This statement requires no interpretation.

The trial court determined that this invocation was “conditional and

therefore equivocal” based on the “totality of the circumstances.” ER 228. That

determination was erroneous because the trial court relied on aspects of the

interaction that occurred after defendant’s invocation. A court may not use

statements after an invocation to find that the earlier invocation was equivocal.

This court has held, in the context of the right to remain silent, that

“the objective meaning of those words must be considered in the totality of circumstances at and preceding the time they were uttered, not based on evidence that occurred after defendant

153

invoked his right to remain silent. Thus, the trial court erred in basing its conclusion on evidence that occurred after defendant invoked that right.”

Avila-Nava, 356 Or at 618 (emphasis added). At the time defendant spoke the

words “Need a lawyer,” they allowed only one interpretation – that he was

invoking his right to counsel.

However, even had the court been correct that defendant’s statement was

equivocal, it erred in holding that the officer’s next actions were proper and

permissible. After defendant said, “Need a lawyer,” the exchange continued as

follows:

“T: Need a lawyer. I … I … these are friends of mine god damn it.

“F: Okay.

“T: These are friends of mine. I’m not going to jeopardize my friends.

“F: Okay.

“T: Can we talk about something else?

“F: We can talk about something else, don’t talk about your friends, we won’t talk about your friends.

“T: Ok. I don’t want to talk about it, don’t want to talk about my friends.

“F: I should have known better because when I talked to you earlier you said [unintelligible] those are your friends.

“T: Yes, sir.

“F: My only intent on this was to make sure we were talking about the same people but we won’t talk about them anymore.

154

“T: Thank you.

“F: Fair enough?

“T: Yes, sir.

“F: Ok. Can I talk to you without a lawyer yet?

“T: Yeah, we can talk without a lawyer again. (laughing)”

Detective Ferguson’s purported “clarifying question” was “Ok. Can I talk

to you without a lawyer yet?” did not, in fact, inquire whether defendant “meant

to invoke his or her right to counsel.” Meade, 327 Or at 339. Even if it was a

proper clarifying question, it came only after the officer engaged in a rapport-

building exchange wherein he acknowledged defendant’s desire not to talk

about his friends. That exchange included a clear invitation to defendant to

discuss other subjects, “We can talk about something else, don’t talk about your

friends, we won’t talk about your friends.” By continuing to converse with

defendant, and assuaging his concerns about his “friends,” Ferguson extended

the interview by using words he “should have known * * * would likely elicit

an incriminating response from defendant.” State v. Boyd, 360 Or 302, 319, __

P3d __ (September 22, 2016). Thus, even assuming defendant’s invocation was

equivocal, the officer’s series of responses following the equivocal invocation

did not clarify the nature of defendant’s statement, but instead continued the

interrogation. Therefore, the trial court erred in denying defendant’s motion to

suppress his remaining statements.

155

II. The trial court’s failure to suppress the results of the state’s unlawful questioning of defendant was harmful. This court will affirm a conviction despite the erroneous admission of

evidence only if there is little likelihood that the evidence affected the verdict.

State v. Davis, 336 Or 19, 32, 77 P3d 1111 (2003). Here, the state obtained

further inculpatory statements from defendant following his unequivocal

invocation. The state introduced a redacted version of the interview as exhibit

351. That interview contained numerous harmful statements. For example,

defendant acknowledged his recent presence in the woods near where the

victim’s body was found. Ex 351 at 50:00. He acknowledged that Crabtree and

were at his house the day of the murder. Id. at 53:00. He stated that he

can quickly get “nasty.” Id. at 1:06:30. He acknowledged his recent presence in

Mapleton. Id. at 1:13:00. Further, he commented that if someone had committed

murder in his home he would hurt them “beyond taking their breath.” Id. at

1:11:00. The state referred to the latter in the first moments of its guilt-phase

closing argument:

“Ladies and Gentlemen, this is a case of such willful violence and callousness, conceived by the defendant, his plans, his house, his cars, his weapons, his ideas, his sadistically creative ideas in the killing of Mr. And he enlisted willing subordinates to be sure, but it took a leader who thinks in terms of that uniquely malicious phrase, ‘hurting people beyond taking their breath’, in order to make the horrors of this case happen.”

Tr. 5735 (emphasis added).

156

Finally, the redacted interview played for the jury also included

defendant’s invocations of his right to counsel. This court has held that “the

Oregon Constitution does not permit a prosecutor to draw the jury’s attention to

a defendant’s exercise of the right to remain silent.” State v Larson, 325 Or 15,

22, 933 P2d 958 (1997). The same is true under the United States Constitution.

Id. at 22-23 (citing Griffin v. California, 380 US 609, 615, 85 S Ct 1229, 1233,

14 L Ed 2d 106 (1965)). Defendant was harmed by the admission of his post-

invocation statements.

THIRTY-SEVENTH ASSIGNMENT OF ERROR26

The trial court erred when it denied defendant’s request for a mistrial

based on the prosecution’s inquiry to Mercedes Crabtree regarding her plea deal

requiring her to testify truthfully.

THIRTY-EIGHTH ASSIGNMENT OF ERROR27

The trial court erred when it denied defendant’s request objection based

on the prosecution’s inquiry to Mercedes Crabtree regarding her plea deal

requiring her to testify truthfully.

26 Defendant combines the preservation of errors, standards of

review, and the argument. ORAP 5.45(6).

27 Defendant combines the Preservation of Error, Standard of Review, and Argument sections of the First through Fourth Assignments of Error because they present essentially the same legal question. ORAP 5.45(6).

157


During the state’s direct examination of Mercedes Crabtree, the

following exchange occurred:

“Q And time goes by and eventually you plead guilty to a number of charges from this, do you not?

“A Mm-hmm.

“Q And those would include robbery, counts related to the robbery in Creswell?

“A Mm-hmm.

“Q To the murder of Celestino is that right?

“A Yeah.

“Q As well as counts related to the Mapleton bank robbery?

“A Yeah.

“Q And you’ve been sentenced already to a life sentence with a mandatory minimum 30?

“A Yeah.

“Q I mean, you cannot even apply for parole until 30 years have passed; is that right?

“A Yeah.

“Q And furthermore, you have been – pursuant to these negotiations, you’re required to give truthful testimony?

“MR. CASCAGNETTE: Objection, Your Honor. I have a matter for the Court.”

Tr. 5148-49.

158

The trial court excused the jury and defendant moved for a mistrial,

stating “we believe that’s vouching and we’d move for a mistrial at this point in

time.” Tr. 5149.

The prosecutor responded that he was merely asking about “the terms of

her negotiations” and that he would be “amazed” if defendant did not address

that subject, “[p]articularly since he referenced it in his opening statement.” Tr.

5149-50.

Defendant responded, “Her negotiated deal with the State is very

different than the State saying ‘You’re testifying here truthfully because that’s

the negotiation we made with you. Therefore, everything you’re truthful.’

They’re different things, Your Honor.” Tr. 5150.

In response to questioning from the trial court, defendant again asserted

that the reference to the requirement that Crabtree testify truthfully constituted

vouching as in “State versus Lupoli” and that “this is the State telling the

witness that they’re telling the truth through the line of questioning.” Tr. 5150.

The trial court ruled, “Okay. All right. The objection is overruled. The

mistrial motion is denied.” Tr. 5151.

On appeal, defendant argues that the contested evidence was inadmissible

pursuant to OEC 609-1. Defendant did not refer to that provision at trial;

however, because “vouching” and “bolstering” are merely different words for

the concepts of “supporting” or “rehabilitating” the credibility of one’s witness,

159

a claim that that the state improperly “vouched” for or “bolstered” its

witness is a claim that the state improperly supported or rehabilitated the

credibility of its witness. State v. Eby, 296 Or 63, 71 n 4, 673 P2d 522 (1983).


An appellate court reviews the issue of whether evidence is relevant to

support or rehabilitate the credibility of a witness as a matter of law. See State v.

Corgain, 63 Or App 26, 29-30, 663 P2d 773 (1983) (not stating, but applying

that rule); Eby, 296 Or 63 at 75-78.

Combined Argument

In this case, defense counsel objected to the prosecutor asking its witness,

Crabtree, whether her plea agreement required her to testify truthfully in a

manner that suggested that the answer was “yes.” The trial court erred in failing

to sustain defendant’s “vouching” objection to that evidence. Evidence that

Crabtree was required to “give truthful testimony” as part of her plea agreement

was not evidence that tended to support or rehabilitate her credibility and was

therefore irrelevant.

A party may support or rehabilitate the credibility of a witness only by

evidence showing a lack of bias or interest. OEC 609-1(3) (“Evidence to

support or rehabilitate a witness whose credibility has been attacked by

evidence of bias or interest shall be limited to evidence showing a lack of bias

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or interest.”) Evidence of a plea agreement in which a person agrees to “tell

the truth” when testifying at the trial of an accomplice does not show “a lack of

bias or interest” under the rule; instead, it shows “truthfulness despite interest.”

Corgain, 63 Or App at 30; accord, Eby, 296 Or at 77 (“The only rehabilitative

evidence admissible under OEC 609-1(3) is evidence to show lack of bias or

interest. Evidence of the agreement to testify truthfully neither violates OEC

609-1(3) nor conforms to it.”)

If such evidence is inadmissible under OEC 609-1(3), it is irrelevant.

Eby, 296 Or at 77 (evidence of an agreement to testify truthfully does not tend

to prove a witness’s credibility and “simply is not relevant.”) Irrelevant

evidence is not admissible. OEC 402. In this case, evidence that Crabtree

agreed to “tell the truth” as part of her plea bargain was not evidence that

tended to support or rehabilitate her credibility and was therefore irrelevant.

The trial court committed error when it admitted such evidence. Corgain, 63 Or

App at 30 (“It was error to permit rehabilitation by evidence of the plea

agreement’s condition that the witness tell the truth.”).

Error is not prejudicial if there is little likelihood the error affected the

verdict. OEC 103(1); Or Const, Art VII (Amended), §3; State v. Davis, 336 Or

19, 32, 77 P3d 1111 (2003). In this case, the trial court’s error was not

harmless.

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The vice of impermissible bolstering, such as in this case, is that “a

jury might give special credence to the testimony of the state’s witness because

of the binding force of the plea bargain, implying a guarantee of the witness’s

veracity.” State v. Charboneau, 323 Or 38, 46, 913 P2d 308 (1996)( citing State

v. Snider, 296 Or 168, 172, 674 P2d 585 (1983)).

It is hard to overstate the importance of Crabtree’s testimony to the

state’s case. Aside from the victim, only she, defendant, and were

present during the killing, and neither defendant nor testified in this

case. Crabtree’s testimony spanned nearly 200 transcript pages and provided a

vivid, gruesome account of the night of August 2, and early morning of August

3. It was she who testified that defendant crafted the plan to kidnap

Tr. 5053-54. She described the killing itself, beginning with defendant coming

around a corner in the darkened house and placing a knife to the victim’s throat.

Tr. 5079. She described defendant orchestrating the event, directing for

example, to go through the victim’s pockets and conferring with him privately

in the kitchen just before the act of killing. Tr. 5096, 5100. It was her testimony

that provided the narrative, recited in defendant’s statement of facts, that

allowed the jury to peer into defendant’s home on the night of the murder,

rather than merely see the crime recreated through scientific and other

circumstantial evidence. Her testimony was indispensable, and the state’s

improper bolstering was unquestionably harmful. Because that is so, it cannot

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be said that the “special credence” given her by the state’s improper

bolstering of her credibility was unlikely to have affected the jury’s

deliberations. See, e.g., Corgain, 63 Or App at 30 (where the credibility of a

state’s witness was a key element of the state’s case in a trial, the admission of a

plea agreement in which the witness agreed to “tell the truth” was not

harmless.)

Crabtree’s testimony was prejudicial for the reasons described above, and

as such, its admission deprived defendant of a fair trial in violation of the Due

Process Clause of the Fourteenth Amendment. v. Illinois, 504 US 719,

726-27, 112 S Ct 2222, 119 L Ed 2d 492 (1992) (every accused is guaranteed a

fair trial). The trial court thus erred when it denied defendant’s motion for a

mistrial. For that reason, defendant respectfully requests that this court reverse

his convictions and remand for a new trial.

The state may argue that this court should not reverse due to the state’s

vouching because Crabtree did not answer the prosecutor’s question. Indeed,

defendant objected before Crabtree answered and, once the jury returned

following the parties’ arguments, the prosecutor did not re-ask the question. Tr.

5149, 5152. However, the nature of the prosecutor’s question suggested the

answer in a manner that renders it the equivalent of affirmative evidence. The

prosecutor engaged in a series of leading questions establishing the nature of

Crabtree’s arrest and subsequent plea agreement:

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“Q Did you spend money that you obtained from this bank robbery?

“A Yeah, I did.

“Q Shopping?

“A Yeah. And camping.

“Q And shortly after that you were arrested?

“A Yeah.

“Q And when that happened, you knew what you were arrested for?

“A Yeah.

“Q And time goes by and eventually you plead guilty to a number of charges from this, do you not?

“A Mm-hmm.

“ Q And those would include robbery, counts related to the robbery in Creswell?

“A Mm-hmm.

“Q To the murder of Celestino is that right?

“A Yeah.

“Q As well as counts related to the Mapleton bank robbery?

“A Yeah.

“Q And you’ve been sentenced already to a life sentence with a mandatory minimum 30?

“A Yeah.

“Q I mean, you cannot even apply for parole until 30 years have passed; is that right?

“A Yeah.

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“Q And furthermore, you have been – pursuant to these negotiations, you’re required to give truthful testimony?

“[Defense Counsel]: Objection, Your Honor. I have a matter for the Court.”

Tr. 5148-49. Thus, at the time of the objection, the prosecutor and Crabtree

were engaged in a rhythmic call-and-response where he described aspects of her

arrest and plea and she responded to each with “yeah” or “mm-hmm.” The jury,

furthermore, would have reasonably understood that the prosecutor was

questioning Crabtree about a topic with which he possessed a personal

familiarity – the nature of Crabtree’s plea deal. Given that pattern, the jury

would have reasonably understood from the mere question that Crabtree’s plea-

deal did, in fact, require her to testify truthfully and her lack of an affirmative

answer on the record does not nullify the trial court’s error.

THIRTY-NINTH ASSIGNMENT OF ERROR

The trial court erred when it denied defendant’s motion for a mistrial

based upon the discovery that Steve Gorham, Crabtree’s attorney, spent the

night at the trial judge’s home during the pendency of this case.

FORTIETH ASSIGNMENT OF ERROR

The trial court erred when it denied defendant’s motion for recusal based

upon the discovery that Steve Gorham, Crabtree’s attorney, spent the night at

the trial judge’s home during the pendency of this case.

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During a pretrial discussion on April 10, 2014, the following exchange

took place:

“[THE COURT]: All right. That’s it for issues for me. Were there any issues that you wanted to raise at this time, either side?”

“[DEFENSE COUNSEL]: Your Honor, there was the one matter that we brought to the court’s attention in chambers yesterday that I would like to put on the record.

“THE COURT: Go ahead.

“[DEFENSE COUNSEL]: If I may. Your Honor, it came to our attention that attorney Steve Gorham, who represents co-defendant Mercedes Crabtree, stayed over at Your Honor’s house last week.

“And we’re not suggesting any actual impropriety at all, but in discussing it with our colleagues in the context of a capital case where the state is seeking the death penalty against Mr. Taylor and Mr. Gorham represents the co-defendant and the state’s primary witness against Mr. Taylor in that endeavor, we are obligated to put that on the record.

“And again, Your Honor, there’s nothing – we’re not suggesting any impropriety, but just the appearance thereof requires just to put that on the record, move for a mistrial and ask the court to recuse itself from further participation in this matter.

“THE COURT: And what would be the basis for the mistrial, counsel?

“[DEFENSE COUNSEL]: The appearance of impropriety, Your Honor, generated by that –

“THE COURT: All right.

“[DEFENSE COUNSEL]: – event. And Your Honor, I’m not – and with respect to your relationship with Mr. Gorham, the court made it clear from early on that you were friends with Mr.

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Gorham. That’s not – Your Honor, if that was an issue, we would have brought that to the court’s attention at the appropriate time. So we appreciate the court’s understanding in this matter.

“[THE PROSECUTOR]: And from the state’s perspective, Your Honor, we have as well had time to talk and discuss this matter. And we too don’t believe that there is likely to have been any impropriety at all; however, this is a situation that causes great concern, not with the immediate fairness that we think Your Honor can have, but we’re concerned that if an adequate record isn’t laid regarding this matter now, we could be dealing with this down the road, several years down the road.

“Defense is moving for recusal, we think that that’s a motion that probably should be heard by another judge, and we need to flesh out – well, Your Honor, in fairness –

“[DEFENSE COUNSEL]: We’re not (whispering).

“THE COURT: Do you –

“[THE PROSECUTOR]: I appreciate that, Your Honor, but when the court is being asked to determine whether or not it can be fair in a matter, it causes some concern. We think that the procedure itself of having another, maybe the criminal judge, head criminal judge or –

“THE COURT: Do you have any authority that says for a recusal motion, the court needs to have someone else rule on that?

“[THE PROSECUTOR]: I don’t have with me immediately any of that. I can tell you anecdotally that we talked about this within our office. And in the past when these motions have come up in capital cases, other judges have actually been the ones who have ruled on the determination of whether or not a recusal was appropriate based on the facts.

“I can provide the court Tyner –State versus Tyner was an example of this in which defense at one point moved to have Judge Larson removed because defense felt he could not be fair to them.

“And at that time, the presiding judge was asked to come in, have a hearing on the matter. Judge Larson actually testified in that

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hearing and the judge ultimately ruled that the recusal wasn’t necessary based on what he had heard and the case went forward.

“We think because of the nature of the case that we have here, the relationship that’s been had and the fact that we want to make sure that the record is as solid as possible going forward about frankly the extent of contact that the court’s had with Mr. Gorham and what, if any, conversations have been had over the course of the 14 months the court’s been appointed to this case regarding the facts of the case and negotiations, we think it appropriate that perhaps another judge come in and determine whether or not the court can be fair in that regard.

“And again, we’re not suggesting that the court has done anything wrong. We don’t believe that the court has, we just want to preserve the record and create whatever procedural protections there can be so that this will not be an issue five, six, eight years down the road.

“THE COURT: All right. So counsel, I’m going to tell you right now that I am extremely frustrated by the fact that this came up. I told both sides of my relationship, my friendship, with Mr. Gorham when we first met in October of 2012.

“I told both sides that Mr. Gorham and I were not only friends, but that we also were volunteers for the same non-profit organization and that we met periodically to deal with that non-profit organization’ business and asked if anyone had a problem.

“And it was – you both told me you had no problems with that whatsoever and to have you now, in the middle of the voir dire, to explain – raise some concern that there’s some impropriety by me having had those meetings when I told you upfront that we were going to be having those meetings is particularly problematic to me.

“As far as the process is concerned, I will take a recess, I guess. I guess I want to hear the defense’s position on whether they think another judge needs to hear this. I’m a little surprised.

“I don’t think that’s technically true in a recusal motion as opposed to an affidaviting and I have also discussed this with a

168

number of my colleagues and none of them thought that that would be necessary.

So I did not discuss with anybody about State versus Tyner. I’ll happily go talk to someone about State versus Tyner, but it seems to me that if that’s what you both want to do, I may do it. I’ll just talk to my colleagues about it.

“But it is troubling to me that since I disclosed this friendship and the ongoing relationship and I also told you both yesterday that I was very clear with Mr. Gorham that he in fact, if he was going to stay at my house, we were not going to talk about the case in any way and we did not talk about it in any way.

“But if you want to have a hearing about it, I’m fine with having – I’ll talk to –

“[THE PROSECUTOR]: We just want the court to be absolutely clear: We’re not accusing the court of anything.

“THE COURT: I don’t think you are. I didn’t hear you to say that you were.

“[THE PROSECUTOR]: Okay.

“THE COURT: I’m just frustrated that this is coming up now when I was upfront with everybody at the very get go about my relationship with Mr. Gorham. And frankly, well, I’m not sure what Mr. Gorham could tell me about this case that I don’t already know from what I learned at the pre-trial proceedings in this case.

“So I mean I’m not sure what else there might be that – so there you go. So do you want me to – do you want a hearing on this matter?

“[DEFENSE COUNSEL]: Your Honor, this wasn’t intended to – Your Honor was upfront with the relationship. We said that, we acknowledged that, that was not a problem. I mean – and the event that triggered this was the lawyer for the co-defendant spending the night. That’s it.

“I mean if you had no relationship with him, no relationship at all, that would still trigger us being here just to put it on the

169

record. So we learn about that and in the context of a capital case, Your Honor, there’s a lot of things we need to put on the record.

“Because if we don’t – because here’s the alternative: The alternative is we let this go. Don’t put it on the record and then five years from now or 10 years from now, somebody says oh, did you know? Right?

“And now all of a sudden we’re back in court five years from now and not only is the issue should have been on the record, you should have raised this motion, you should have done this and then we’re back – we’re back for, you know, a re-trial of further proceedings on an issue that when we learn that, what do we do with that?

“I mean we’re not suggesting anything inappropriate took place between you and Mr. Gorham. So, Your Honor, I under – so while the court says they’re frustrated, I’m frustrated with that, Your Honor, because that’s not the issue.

“The issue is if it was Joe Blow that came in from Seattle, Washington who represents the co-defendant and spends the night at your house, what do we do with that? So we speak with our colleagues. Okay.

“* * * in the context of a capital case and you put it on the record and do this. So we did it. So we’re equally frustrated by it on a number of levels, Your Honor. In fact that we have to be here. If I hope the court – I’m making sense to the court.”

Tr. 2851-58

The trial court asked defense counsel if he believed they needed a hearing

before another judge and counsel responded that he did not think so. Tr. 2859.

The court then announced that it would take a short recess and consult with

colleagues, including the presiding judge. Tr. 2859. The prosecutor stated that

holding a hearing before a neutral judge “would help to create the appearance,

anyway, that we’ve done everything we can at this stage right now to be as

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open and fair about it as possible. And that’s the reason for the state’s

request.” Tr. 2860.

After a short recess, the trial court reiterated that it had denied the motion

for a mistrial but would take the recusal motion under advisement. Tr. 2861.

On April 14, 2014, the trial court addressed the mistrial and recusal

motions. The court first provided a factual background:

“These motions were based on the alleged appearance of impropriety that resulted from me allowing Mr. Steven Gorham to spend the night on Tuesday, April 1st, 2014 at my home as a guest. In response to these motions, the state asked that I bring another judge – bring in another judge to hear the motion to recuse and that there be an evidentiary hearing on that motion.

“By way of factual background, three people were indicted on charges relating to the death of Mr. Celestino Junior: Mr. Taylor, Ms. Crabtree and Mr. Mr. Steve Gorham is one of the attorneys appointed to represent Ms. Mercedes Crabtree.

“Like Mr. Taylor, Ms. Crabtree was charged with, amongst other things, aggravated murder relating to the murder to Mr. Celestino Junior. The charges against her were filed as a separate case and that case was assigned to the Honorable Mustafa Kasubhai.

“It appears from an OJIN check – from a check of OJIN records, I apologize, that Ms. Crabtree plead guilty to some of the charges pending against her on May 23rd, 2013 and was sentenced on May 30th, 2013. Her case is now closed.

“It is my understanding that Ms. Crabtree is expected to be a witness in this case, thus Mr. Gorham does not represent any party to this case and I had no role in Ms. Crabtree’s case.

“The case against Mr. Taylor was assigned to me on August 10, 2012. I first met with counsel on October 4, 2012. At that first meeting in chambers, I disclosed to counsel for both sides that Mr.

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Gorham was a friend of mine, that we both volunteered for the same non-profit organization and I saw him fairly frequently in that capacity and occasionally in other social settings.

“I asked the parties to immediately let me know if they had any concerns about that situation so that I could have the case reassigned to another judge. Both parties indicated they had no concerns with the situation and there was no need to have the case reassigned.

“My friendship and ongoing social contact with the lawyer who represents a non-party co-defendant is not a violation of a judicial code of conduct.

“Nevertheless, I brought the relationship to the attention of the parties in an abundance of caution to avoid any claim of an appearance of impropriety.

“I return to the motions currently before the court. As a preliminary matter, I want to address the state’s request that we hold an evidentiary hearing before another judge. There is no authority for such – for such a process is required.

“While such a process was followed in State versus Tyner, nothing in the Supreme Court’s review of that case even mentions, let alone requires, such a process.

“And after having consulted with several of my colleagues, I decline the state’s request to hold an evidentiary hearing on this matter before another judge. The state has asked that I make a record of the conversations that I’ve had with Mr. Gorham in the last 18 months.

“I have seen Mr. Gorham on numerous occasions in the 18 months between my first meeting with counsel and today. I cannot recall all of the conversations that I have had with him any more than I could recall the content of every conversation that I have had either with [defense counsel] Mr. Cascagnette or [prosecutor] Mr. Parosa during that time.

“Excluding conversations that have nothing to do with this case, I do recall that at times, Mr. Gorham has asked me questions about the schedule of this case.

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“For example, when is this or that hearing to be held or he has asked for copies of documents that were part of the public record in this case. However, we have never had a conversation about any of the substantive issues in this case.

“Mr. Gorham asked my wife and I if he could stay overnight at our house, as he and his wife have on occasion in the past, on Tuesday, April 1st. When he did that, I told him he could, provided that we would not discuss the case in any way, which he readily – to which he readily agreed. We did not discuss the case in any way that night.

“Ironically, I note that for record that between my working late and getting ready for the next day’s voir dire panels in this case and my judging first year law students’ oral arguments at the law school that evening, I spent perhaps 90 minutes in conversation with Mr. Gorham that night, which is far less than the time that we’ve been together to converse at other meetings.”

Tr. 3201-05.

The court then issued the following ruling:

“I turn then to the merits of the defendant’s motions. First to the motion asking that I recuse myself. To be clear, this is not a motion to disqualify me pursuant to ORS 14.260, nor could it be, as my relationship with Mr. Gorham has been known by the defense since the beginning of this case. And I have made numerous rulings on numerous issues in this case in the 18 months since I disclosed this ongoing relationship.

“Defendant has failed to identify how having ongoing social contact with a lawyer who does not represent a party to this case creates any appearance of propriety – impropriety, especially when the parties were advised of that ongoing contact and consented to it for almost a year and a half.

“I likewise decline to recuse myself from this case voluntarily. I was willing to do that 18 months ago when I brought this relationship to the parties’ attention.

“Since that time, however, I have ruled on over 60 motions, we have subpoenaed over 600 potential jurors, over 200 of those

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potential jurors have completed lengthy questionnaires and at the time the motions were made in this case, we had interviewed approximately 100 potential jurors. Therefore, the motion to recuse is denied.

“Turning to the motion for a mistrial. Mistrial is appropriate if, during a trial, an event occurs that interfere with the defendant’s ability to obtain a fair trial. Defendant has not even identified any case law that supports a mistrial under these circumstances.

“As stated above, no event has occurred that in any way interferes with Mr. Taylor’s ability to obtain a fair trial. Therefore, the motion for a mistrial is den – has no basis in fact and it is therefore denied.”

Tr. 3205-07.

Standard of Review

This court does not appear to have announced a standard of review for

whether a defendant’s right to due process has been violated because he has

been denied a trial before an impartial judge. The Court of Appeals has

reviewed it as a question of law. See State v. Garza, 125 Or App 385, 388˗89,

865 P2d 463 (1993), rev den, 319 Or 81 (1994) (applying standard). See also

Moro v. State, 354 Or 657, 661, 320 P3d 539, 541 (2014) (apparently reviewing

as a question of law whether members of this court were required to recuse

themselves).

An appellate court reviews the denial of a motion for mistrial for abuse of

discretion. State v. Smith, 310 Or 1, 24, 791 P2d 836 (1990).

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Argument

The Due Process Clause of the Fourteenth Amendment guarantees a

defendant the right to a fair trial before an impartial judge. Caperton v. A.T.

Massey Coal, Co., Inc., 556 US 868, 876, 129 S Ct 2252, 173 L Ed 2d 1208

(2009) (“It is axiomatic that ‘[a] fair trial in a fair tribunal is a basic

requirement of due process.’”) (citation omitted); see Tumey v. Ohio, 273 US

510, 534, 47 S Ct 437, 71 L Ed 749 (1927) (“A situation in which an official

perforce occupies two practically and seriously inconsistent positions, one

partisan and the other judicial, necessarily involves a lack of due process of

law in the trial of defendants charged with crimes before him.”).

In a capital case, due process demands that a trial court avoid bias,

partiality, or even the appearance of impropriety. Here, the trial court erred

when it failed to grant a mistrial or recuse itself, or, as the state itself urged,

allow the question of recusal to be considered by an independent judge.

Specifically, the trial court erred when it refused to take any of those remedial

steps after it was revealed that Steve Gorham – an attorney for Mercedes

Crabtree, a crucial state’s witness – spent the night at the trial judge’s home

during the pendency of the trial.

According to the trial court’s summary of the facts relevant to

defendant’s recusal and mistrial motions the trial judge revealed at an early

stage of the proceedings that he was friends with Gorham, and asked the parties

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if they wished to seek a different judge. The court expressed frustration that

the parties declined that invitation but then later sought recusal or a mistrial.

The parties did not contest this recitation of events. However, defendant did not

seek the judge’s recusal or the mistrial based on the bare existence of that

friendship. Rather, defendant made clear that it was the act of hosting Gorham –

which occurred during voir dire – that prompted the motions. As defense

counsel stated,

“I mean if you had no relationship with him, no relationship at all, that would still trigger us being here just to put it on the record. So we learn about that and in the context of a capital case, Your Honor, there’s a lot of things we need to put on the record.”

Tr. 2857. Counsel reiterated that it was not the previously disclosed

relationship, but the act of Crabtree’s counsel spending the night at the judge’s

home that gave the parties cause for concern, emphasizing that the problem

would be the same even if it “was Joe Blow that came in from Seattle,

Washington who represents the co-defendant and spends the night at your house

* * *.” Tr. 2858. According to the judge’s recitation of the facts, Gorham spent

the night at the trial judge’s home on Tuesday, April 5, 2014. Tr. 3205.

Defendant made his motions for mistrial and for recusal on April 10, 2014. Tr.

2851. Neither the trial court nor a party suggested that defendant waited any

significant length of time to make the motions upon learning of the fact that

Gorham spent the night at the trial judge’s house. Thus, this was not, as the

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court suggested, a matter that defendant could have raised much earlier in

the process. Further, the court acknowledged that it had discussed the case with

Gorham, although it asserted that that discussion was limited to procedural

matters, and that it had provided public records regarding the case to Gorham.

“A fair trial in a fair tribunal is a basic requirement of due process.” In re

Murchison, 349 US 133, 136, 75 S Ct 623, 99 L Ed 942 (1955). Fairness is not

limited to the absence actual bias; rather, “our system of law has always

endeavored to prevent even the probability of unfairness.” Id. To that end, the

United States Supreme Court has said that “[e]very procedure which would

offer a possible temptation to the average man as a judge * * * which might

lead him not to hold the balance nice, clear, and true between the state and the

accused denies the latter due process of law.” Tumey v. Ohio, 273 US 510, 532,

47 S Ct 437, 71 L Ed 749 (1927). While “[s]uch a stringent rule may

sometimes bar trial by judges who have no actual bias and who would do their

very best to weigh the scales of justice equally between contending parties,”

such a rule is necessary because “to perform its high function in the best way

‘justice must satisfy the appearance of justice.’” In re Murchison, 349 US at

136 (quoting Offutt v. United States, 348 US 11, 14, 75 S Ct 11, 99 L Ed 11

(1954)).

The Oregon Constitution also guarantees the right to a fair and impartial

trial:

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“Essential to that protection is the requirement that the presiding judge maintain complete neutrality in the case. A trial judge is not a mere moderator, but governs the trial for the purpose of ensuring that the proceedings are properly conducted and that justice is administered fairly and impartially. The judge’s duty to remain impartial requires that judge be fair to both parties and avoid not only actual prejudice, but also the appearance of prejudice by either language or conduct.”

State v. Garza, 125 Or App 385, 388, 865 P2d 463 (1993), rev den, 319 Or 81

(1994) (emphasis in original). Thus, “to ensure due process, a judge’s actual or

apparent bias must by necessity result in disqualification, even when the

statutory requirements for recusal have not been * * * followed.” Id. at 388˗89

(emphasis in original).

When making a determination on a motion to disqualify a judge on

constitutional grounds,

“the inquiry is not only whether there was actual bias on the judge’s part, but also whether the judge’s conduct or words created such a likelihood of bias or an appearance of bias that the judge was unable to hold the balance between vindicating the interest of the court and the interests of the accused.”

Id. at 389 (quoting Ungar v. Sarafite, 376 US 575, 588, 84 S Ct 841, 11 L Ed

2d 921 (1964)).

The United States Supreme Court recently addressed the issue of judicial

bias and recusal in Williams v. Pennsylvania, ___ US ___, 136 S Ct 1899, 195

L Ed 2d 132 (June 9, 2016). The Court held,

“Due process guarantees ‘an absence of actual bias’ on the part of a judge. In re Murchison, 349 US 133, 136, 75 S Ct 623, 99

178

L Ed 942 (1955). Bias is easy to attribute to others and difficult to discern in oneself. To establish an enforceable and workable framework, the Court’s precedents apply an objective standard that, in the usual case, avoids having to determine whether actual bias is present. The Court asks not whether a judge harbors an actual, subjective bias, but instead whether, as an objective matter, ‘the average judge in his position is “likely” to be neutral, or whether there is an unconstitutional “potential for bias.”’” Caperton, 556 US at 881, 129 S Ct 2252.”

Williams, ___ US at ___, 136 S Ct at 1905.

Williams involved a situation where a judge – in that case, the Chief

Justice of Pennsylvania’s highest judge, had formerly served as a prosecutor

who had authorized seeking the death penalty against a defendant, and later

failed to recuse himself from consideration of that defendant’s appellate case.

Id. at 1907. The trial court in this case, of course, did not have a similar

involvement in the prosecution of defendant. Nevertheless, the matter is serious.

As outlined in the previous assignment of error, Crabtree’s testimony was key.

She was the state’s lone witness who was present at the murder, and she was

instrumental in painting defendant as the mastermind behind the abduction,

robbery, and murder of the victim. Moreover, as further set out above, the trial

court here made erroneous rulings regarding Crabtree’s testimony that her plea

deal obliged her to testify truthfully.

Further, the trial court declined to take even the minimally disruptive step

suggested by the prosecutor: merely allow a neutral judge to consider the

recusal motion. Rather, the trial judge expressed frustration that the parties

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sought to make an issue of his previously disclosed friendship with Gorham.

But it was not that previously disclosed friendship that led to defendant’s

motions. Rather, the problem arose when the judge hosted, in his home, the

attorney for Crabtree, the state’s most damning witness, as the trial began. That

act “gave rise to an unacceptable risk of actual bias. This risk so endangered the

appearance of neutrality that his participation in the case ‘must be forbidden if

the guarantee of due process is to be adequately implemented.’” Williams, ___

US at ___, 136 S Ct at 1908-09 (quoting Withrow v. Larkin, 421 US 35, 47, 95

S Ct 1456, 43 L Ed 2d 712 (1975)).

FORTY-FIRST ASSIGNMENT OF ERROR

The trial court erred when it denied defendant’s “vouching” objection

during the state’s examination of


During the state’s direct examination of Wretha the

following exchange took place:

“Q * * * Did you ever, during the pendency of this case, seek any favorable treatment or deals from the State?

“A No.

“Q But you had omitted significant details about yours and others’ involvement when you first spoke to the police, is that right?

“A That’s correct.

180

“Q Well, recently, you were granted immunity in order to testify; is that so?


“Q And is it fair to say that once you understood that you had immunity, did that make you more at ease about giving more details about what happened?

“A It did.

“Q Are these details things that you’ve made up for some purpose?

“A No.

“Q Are these details that you’re giving are the truth to your best ability, is that so?


“Q Now, I want – “

Tr. 4722.

Defendant interjected an objection, “Objection, Your Honor. I have

a matter for the Court again. Well, maybe I don’t. Your Honor, I object. It’s

vouching.” Tr. 4723. The trial court overruled the objection and the state

continued its examination:

“Q Let me – you take your oath seriously in court, do you not?

“A I do.

“Q And you took an oath to tell the truth?

“A I did.”

Tr. 4723.

181

Standard of Review

An appellate court reviews the issue of whether evidence is relevant to

support or rehabilitate the credibility of a witness as a matter of law. See State v.

Corgain, 63 Or App 26, 29-30, 663 P2d 773 (1983) (not stating, but applying

that rule); Eby, 296 Or 63 at 75-78.

Argument

The trial court erred in overruling defendant’s vouching objection to

testimony for reasons similar to why it erred in overruling the

objection and denying the mistrial as to Crabtree, discussed in defendant’s

Thirty-Eighth and Thirty-Ninth Assignments of Error. Although

did not obtain a plea agreement, she was testifying pursuant to an immunity

agreement. Those arrangements are functionally identical for purposes of this

error. And here, the prosecutor’s questioning about her truth-telling came

immediately after she testified about the immunity deal, creating the clear

impression that she was buttressing her testimony with an assertion that her deal

required truthfulness and that, therefore, the jury should give it greater weight.

A party may support or rehabilitate the credibility of a witness only by

evidence showing a lack of bias or interest. OEC 609-1(3) (“Evidence to

support or rehabilitate a witness whose credibility has been attacked by

evidence of bias or interest shall be limited to evidence showing a lack of bias

182

or interest.”) Evidence of a plea agreement in which the defendant agrees to

“tell the truth” when testifying at the trial of an accomplice does not show “a

lack of bias or interest” under the rule; instead, it shows “truthfulness despite

interest.” Corgain, 63 Or App at 30; accord, Eby, 296 Or at 77 (“The only

rehabilitative evidence admissible under OEC 609-1(3) is evidence to show

lack of bias or interest. Evidence of the agreement to testify truthfully neither

violates OEC 609-1(3) nor conforms to it.”)

If such evidence is inadmissible under OEC 609-1(3), it is irrelevant.

Eby, 296 Or at 77 (evidence of an agreement to testify truthfully does not tend

to prove a witness’s credibility and “simply is not relevant.”) Irrelevant

evidence is not admissible. OEC 402. In this case, evidence that

agreed to “tell the truth” as part of her immunity deal was not evidence that

tended to support or rehabilitate her credibility and was therefore irrelevant.

The trial court committed error when it admitted such evidence. Corgain, 63 Or

App at 30 (“It was error to permit rehabilitation by evidence of the plea

agreement’s condition that the witness tell the truth.”).

Error is not prejudicial if there is little likelihood the error affected the

verdict. OEC 103(1); Or Const, Art VII (Amended), §3; State v. Davis, 336 Or

19, 32, 77 P3d 1111 (2003). In this case, the trial court’s error was not

harmless.

183

The vice of impermissible bolstering, such as in this case, is that “a

jury might give special credence to the testimony of the state’s witness because

of the binding force of the plea bargain, implying a guarantee of the witness’s

veracity.” State v. Charboneau, 323 Or 38, 46, 913 P2d 308 (1996)( citing State

v. Snider, 296 Or 168, 172, 674 P2d 585 (1983)). immunity

agreement is analogous to a plea deal, and the concern is the same.

Like Crabtree, was a crucial witness for the state. Although

she was not present at the murder itself, she had a unique front-row seat to the

planning of the murder and the bank robberies. Of particular importance, she

described defendant’s statements that someone had to die for them to get a new

car so that it would not be reported stolen before the robbery. Tr. 4757. She also

described the conversation about going to the Brew and Cue bar and

defendant’s plan to use Crabtree to lure someone home. Tr. 4756, 4762-64.

Given her centrality it cannot be said that the “special credence” given her by

the state’s improper bolstering of her credibility was unlikely to have affected

the jury’s deliberations. See, e.g., Corgain, 63 Or App at 30 (where the

credibility of a state’s witness was a key element of the state’s case in a trial,

the admission of a plea agreement in which the witness agreed to “tell the truth”

was not harmless.)

testimony was prejudicial for the reasons described

above, and as such, its admission deprived defendant of a fair trial in violation

184

of the Due Process Clause of the Fourteenth Amendment. v.

Illinois, 504 US 719, 726-27, 112 S Ct 2222, 119 L Ed 2d 492 (1992) (every

accused is guaranteed a fair trial). The trial court thus erred when it denied

defendant’s objection. For that reason, defendant respectfully requests that this

court reverse his convictions and remand for a new trial.

FORTY-SECOND THROUGH SIXTY-EIGHTH

ASSIGNMENTS OF ERROR The trial court erred when it denied defendant’s motion for judgment of

acquittal on the Creswell robbery counts, the murder counts, and the Mapleton

robbery counts.


At the close of the guilt-phase evidence, defendant moved for a judgment

of acquittal “related to the Creswell bank robberies, the Mapleton bank

robberies, and the allegations of murder. Simply that there’s not sufficient

corroborating evidence of the accomplices, Your Honor.” Tr. 5626.

The trial court responded,

“All right. So let’s do the bank robberies first of all. There’s the videotape of the robbers at the banks, there’s the tracker data, and there’s a bullet found from a gun that matches. I mean there’s lengthy – am I missing something there? I mean, there’s probably more – I’m sure there’s more the State would point out, but you don’t – tell me you don’t think that’s sufficient corroboration?”

Tr. 5626.

185

Defendant responded, “That’s our position, your honor.” Tr. 5626.

The trial court denied the general motion for judgment of acquittal. Tr. 5626.

Defendant next advanced more specific arguments regarding several of

the counts. With regard to Count 12, kidnapping, he argued:

“on the kidnapping count, Count 12, the elements of taking from one place to another without consent, and secretly confining in a place not likely to be found, we move for judgment of acquittals that those two elements have not been established. Again, Your Honor, recognizing that the jurisprudence may not be in our favor on those elements.”

Tr. 5627.

He added the following on the aggravated murder allegation in: “on the

aggravated murder count, to the extent they require the element of personal and

intentional, again, we move for judgment of acquittal because that element has

not been established.” Tr. 5627. In support of the latter, defendant cited State v.

Link, 346 Or 187, 208 P3d 936 (2009). He specified that that argument applied

to Count 15. Tr. 5628. The trial court denied the motions. 5630-32.28

Standard of Review

This court reviews the denial of a defendant’s motion for judgment of

acquittal to determine “whether a rational trier of fact, making reasonable

28 Defendant also moved for judgment of acquittal on the allegation

of intentional torture or maiming in Count 17. Tr. 5633. That issue is moot, however, as the jury convicted defendant only on the lesser-included offense of intentional murder for that count.

186

inferences, could have found the essential elements of the crime proved

beyond a reasonable doubt.” State v. Hall, 327 Or 568, 570, 966 P2d 208

(1998). It views the evidence in the light most favorable to the state, giving it

the benefit of reasonable inferences. Id.

Under federal law, the reviewing court must determine whether,

considering the evidence in the light most favorable to the prosecution, any

rational trier of fact could have found the defendant guilty of the essential

elements of the crime beyond a reasonable doubt. Jackson v. Virginia, 443 US

307,99 S Ct 2781,61 L Ed2d 560 (1979). The Jackson inquiry “is aimed at

determining whether there has been an independent constitutional violation-i.e.,

a conviction based on evidence that fails to meet the [In re Winship, 397 US

358 90 S Ct 1068, 25 L Ed 2d 368 (1970)] standard. Thus, federal habeas courts

act in their historic capacity-to assure that the habeas petitioner is not being held

in violation of his or her federal constitutional rights.” Herrera v. Collins, 506

US 390,402, 113 S Ct 853,861, 122 L Ed 2d 203 (1993). Mere suspicion or

speculation cannot be the basis for creation of logical inferences. ld.

Argument

Although the state presented a variety of forms of evidence, it relied

heavily on the testimony Wretha and Mercedes Crabtree,

participants in the various crimes at issue in this case. Both of those were

187

interested witnesses. As discussed above, testified after

receiving immunity in this case and Crabtree pleaded guilty to murder and

agreed to testify in exchange for a reduced sentence. Furthermore, Crabtree was

the only testifying witness present at the murder

ORS 136.440 bars convictions from arising only upon testimony of an

accomplice. It provides:

“(1) A conviction cannot be had upon the testimony of an accomplice unless it is corroborated by other evidence that tends to connect the defendant with the commission of the offense. The corroboration is not sufficient if it merely shows the commission of the offense or the circumstances of the commission.

“(2) As used in this section, an “accomplice” means a witness in a criminal action who, according to the evidence adduced in the action, is criminally liable for the conduct of the defendant under ORS 161.155 and 161.165, or, if the witness is a juvenile, has committed a delinquent act, which, if committed by an adult, would make the adult criminally liable for the conduct of the defendant.”

This court has explained that the statute requires that the “corroborating

evidence must connect, or tend to connect, the defendant with the commission

of the crime charged; and, furthermore, the tendency of the corroborative

evidence to connect the defendant must be independent of any testimony of the

accomplice. The corroborative evidence must of its own force, independently of

the accomplice testimony, tend to connect the defendant with the commission

of the crime.” State v Brake, 99 Or 310, 313–14, 195 P 583 (1921). Here, this

188

court should hold that, given the centrality of the accomplice testimony, no

fact finder could determine that the state met its burden.

SIXTY-NINTH THROUGH EIGHTY-FIRST

ASSIGNMENTS OF ERROR The trial court erred when it overruled defendant’s objection to the

admission of exhibits 79-91, photographs of the victim, as impermissible

victim-impact evidence during the guilt-phase.

EIGHTY-SECOND ASSIGNMENT OF ERROR29

The trial court erred when it overruled defendant’s objection to the

admission of exhibit 94, a surveillance video of the victim, as impermissible

victim-impact evidence during the guilt-phase.

EIGHTY-THIRD ASSIGNMENT OF ERROR

The trial court erred when it overruled defendant’s objection to the

victim’s mother’s testimony on the grounds that it constituted victim-impact

evidence.


Review, and Argument sections of the following Assignments of Error because they present essentially the same legal question. ORAP 5.45(6).

189

EIGHTY-FOURTH ASSIGNMENT OF ERROR The trial court erred when it overruled defendant’s motion for a mistrial

during the victim’s mother’s testimony on the grounds that her testimony

constituted victim-impact evidence.


Defendant pretrial filed a written Motion to Exclude/Limit Victim Impact

and Aggravating Evidence from Fact-Finding and Sentencing Phases. A copy of

that motion is attached at ER 51-52. The state filed a written response, primarily

addressing the sentencing phase. A copy of that response is attached at ER 115-

121.

During trial, defendant filed a Written Objection to Exhibits (Exh Nos

94, 73-91). A copy of that motion is attached at ER 326-329. In that motion,

defendant “incorporate[d] the arguments set forth in his motion and supporting

memorandum to exclude limit victim impact and aggravating evidence from

fact finding and sentencing phases and submits that the exhibits constitute

inadmissible victim impact evidence.”

During trial, outside of the presence of the jury, defendant argued against

the admission of exhibits 79-91,

“And then we have, Your Honor, a separate group of exhibits: 79 through 91 and those are all photographs of the victim: 79 is a photograph of the victim and friends and 80 through 91 are all apparently photographs at the Brew & Cue * * * * *

190

“And we further incorporate the arguments set forth in our motion supporting memorandum to exclude and limit victim impact and aggravating evidence from fact finding and sentencing phases and submit that the exhibits further constitute inadmissible victim impact evidence.

“And the authority, Your Honor, is set forth in that motion memorandum. In addition to the United States Constitution’s Sixth, Eighth and Fourteenth Amendments, Oregon Constitution Article 1, Sections 10, 11, 16 and 20 and the Oregon Evidence Code 401, 403 and 801 and also ORS 41.415, which allows a photograph of a victim while alive in the trial phase of the trial such as this, Your Honor, subject to whatever weighing the court engages in.”

Tr. 4070-71.

Defendant also argued that exhibit 94, a composite video containing the

victim, was victim-impact evidence. Tr. 4216-21. The trial court overruled

those objections. Tr. 4230, 4234. The state introduced the photographs through

the testimony of Noelle the victim’s friend. Tr. 4236. It played the

video, exhibit 94, during the testimony of Eugene Police Department Forensic

Analyst Rhiannon Daniel. Tr. 4422.

During the testimony of the victim’s mother, Rose she

described the victim’s physical appearance and explained that he helped she and

her husband get vitamins and defendant interjected the following objection and

request for a mistrial:

“Your Honor, we object. We believe this testimony is inadmissible. The victim impact evidence concerning the personal characteristics of the victim and the effect of his demise on the family.

191

“There has been some testimony we did not object earlier, we let it go. We have an objection. It’s continuing and ongoing. We object. We move for a mistrial.”

Tr. 4358-59.

The trial court asked the state to limit its questioning to the victim’s

physical appearance. Tr. 4359. However, it denied the motion for mistrial. Tr.

4360.


This court reviews whether evidence is relevant as a matter of law. State

v. Titus, 328 Or 475, 481, 982 P2d 1133 (1999). This court reviews for an abuse

of discretion whether to admit or exclude evidence under OEC 403. State v.

Brumwell, 350 Or 93, 107, 249 P3d 965 (2011).

Combined Argument

The trial court should have excluded the guilt-phase victim impact

because it was irrelevant; and even if relevant, the evidence was more unfairly

prejudicial than probative. Indeed, the improper emotional impact of the

evidence had so strong and indelible an impact that the trial court abused its

discretion in deciding to admit it.

Evidence is not admissible unless relevant. OEC 402; State v Mayfield,

302 Or 631, 644, 733 P2d 438 (1987). Relevant evidence is “evidence having

any tendency to make the existence of any fact that is of consequence to the

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determination of the action more probable or less probable than it would be

without the evidence.” OEC 401.

Under OEC 403, “[a]lthough relevant, evidence may be excluded if its

probative value is substantially outweighed by the danger of unfair prejudice,

confusion of the issues, or misleading the jury, or by considerations of undue

delay or needless presentation of cumulative evidence.” OEC 403; see also

Barone, 329 Or at 235-36. “Unfair prejudice” means “an undue tendency to

suggest decisions on an improper basis, commonly although not always an

emotional one.” Barone, 329 Or at 235.

ORS 163.150(1)(a) provides, in part, that

“[u]pon a finding that the defendant is guilty of aggravated murder, the court, * * * shall conduct a separate sentencing proceeding * * *[.] * * * In the proceeding, evidence may be presented as to any matter that the court deems relevant to sentence including, but not limited to, victim impact evidence relating to the personal characteristics of the victim or the impact of the crime on the victim’s family * * *[.]”

(Emphasis added). The 1995 Oregon legislature added the portion of the

paragraph permitting the introduction of victim impact evidence during the

penalty phase, in response to the decision in State v. Guzek, 322 Or 245, 906

P2d 272 (1995) (Guzek I), which held that victim impact evidence was not

relevant evidence under OEC 401. No equivalent statute specially permits the

introduction of victim impact evidence during the guilt phase. ORS

163.150(1)(c)(B), which concerns jury instructions on answering the fourth

193

penalty-phase question “no,” also makes plain that such evidence is only

relevant during the penalty phase.

The United States Supreme Court has held that the introduction of victim

impact evidence during the penalty phase of a capital murder trial does not

infringe on the defendant’s constitutional rights. Payne v. Tennessee, 501 US

808, 111 S Ct 2597, 115 L Ed 2d 720 (1991). But the Payne Court did not have

occasion to decide, and did not decide, the propriety of admitting such evidence

at the guilt phase of the trial.

This court has also not had any occasion to decide a claim of improper

admission of victim impact evidence during the guilt phase of an aggravated

murder trial in the post-Guzek era. Other states’ appellate courts have, however.

As those decisions demonstrate, the victim impact evidence admitted here was

not admissible under OEC 401 or OEC 403.

“The key inquiry on the admissibility of victim impact testimony during

the guilt phase of a criminal trial is relevancy.” White v. State, 2003 WY 163,

¶13, 80 P3d 642, 649 (Wyo. 2003). The broad consensus nationwide is that

victim impact evidence is irrelevant during the guilt phase of a capital murder

trial. As the Alabama Supreme Court has explained:

“[T]he introduction of victim impact evidence during the guilt phase of a capital murder trial can result in reversible error if the record indicates that it probably distracted the jury and kept it from performing its duty of determining the guilt or innocence of the

194

defendant based on the admissible evidence and the applicable law.”

Ex parte Rieber, 663 So2d 999, 1006 (Ala 1995). Other courts describe victim

impact evidence as “irrelevant and immaterial to the guilt or innocence of the

accused; it principally serves to inflame the passion of the jury. State v.

Carlisle, Cuyahoga App No. 90223, 2008-Ohio-3818, ¶53, citing State v.

White, 15 Ohio St 2d 146, 239 NE2d 65 (1968); see also Haynes v. State, 2008

WY 75, ¶38, 186 P3d 1204, 1213 (Wyo. 2008), Ernst v. Commonwealth, 160

SW3d 744, 763 (Ky 2005); Bennett v. Commonwealth, 978 SW2d 322, 325-26

(Ky 1998).

The victim impact evidence admitted in this case might have been

admissible at the penalty phase under ORS 163.150(1)(a). Its premature

introduction, however, had an effect on the analytically distinct inquiry into

defendant’s liability for aggravated murder. What the jury learned about

and his family and friends’ losses did not make it more or less likely

that defendant was guilty. Yet, the evidence undoubtedly had an improper

emotional impact on the jury. Either because the evidence was not relevant or

because the unfairly prejudicial impact of the evidence grossly outweighed its

probative value, the trial court erred in admitting the evidence. For the same

reasons, the trial court violated defendant’s Fourteenth Amendment Due

195

Process right to a fair trial. Estelle v McGuire, 502 US 62, 70, 112 S Ct 475,

116 L Ed 2d 385 (1991).

This court may affirm despite the error only if it determines that there is

“little likelihood that the error affected the verdict.” Davis, 336 Or 19 at 33. The

same improper emotional impact that defendant identifies above as unfairly

prejudicial demonstrates that the error in admitting the victim impact evidence

was harmful. The evidence may have elicited such sympathy for the friends and

family of the homicide victims that it irrationally impacted the jury

deliberations as to whether defendant committed the murders. The error was not

harmless, and this court should reverse.

EIGHTY-FIFTH ASSIGNMENT OF ERROR

The trial court erred when it granted the state’s motion in limine and

prevented defendant from inquiring about a prior murder accusation against

in Colorado.


During the state’s examination of Crabtree, it made an oral motion in

limine to prevent defendant from introducing evidence that was

involved in a murder in Colorado prior to this case:

“And we’re going to object to any questions about Mr. conduct or involvement in a murder case for which he

196

received immunity to testify. He actually testified in a drive-by shooting in Colorado, unrelated entirely to this event.

“Mr. is not testifying. There’s no conviction there. And I’m not sure what the argument on relevance would be, particularly going at it through Ms. Crabtree. The circumstances of that crime aren’t remotely similar to this one, either.”

Tr. 5081.

The trial court asked defendant whether he intended to address that topic,

and counsel responded:

“I intend to ask her if she’s aware of it, Your Honor. Mr. was in a vehicle where there was a drive-by shooting in

Colorado. Individuals were convicted of murder. He did, in fact, testify against them, had immunity and walked away from it.

“I think it’s relevant for a couple purposes. One, it’s not necessarily offered for the truth of the matter. It’s offered for both hers and AJ state of mind as they’re sitting there trying to figure out – as Ms. Crabtree, I think, just testified to, she became aware that Mr. was likely to be killed outside the Brew & Cue when AJ told her.

“To the extent she’s aware of his prior involvement, it goes to both of their state of minds.

“It also goes to our due process right to present a defense.

“Your Honor knows what our defense is in this matter, and that’s relevant to show his involvement.”

Tr. 5082.

The trial court responded that “he’s not testifying in this matter, and she

isn’t testifying that he’s a nice guy. She’s hasn’t [sic] offered any opinion

testimony about his – whether he would do it or not,” and asked how the

Colorado murder was relevant. Tr. 5082.

197

Defendant responded that the murder was relevant because if

Crabtree is “sitting in that car when this is about to go down, if she’s aware that

Mr. was involved in a prior murder in Colorado, it certainly should

affect her state of mind.” Tr. 5083. Defendant also noted that Crabtree had

given different statements in previous interviews regarding “when she became

aware of it. Her other statements are that she didn’t know anything was – this

individual was going to die until after she essentially saw it happen.” Tr. 5084.

The trial court responded,

“I just don’t see how her awareness of AJ involvement in any other offense would change that, whether – you know, one way or the other.

“If anything, it would bolster her statement that she was worried that he was going to – they were going to murder him, not to make it less.”

Tr. 5084.

The trial court ultimately granted the state’s motion:

“I’m going to grant the State’s motion in limine at this time.

“It may be – and I’m open to if you feel at the point you need to do your cross, that something has happened in the direct that has changed the calculus and you want to raise that again at that point in time, I’m happy to take that discussion up again so it will be clear.

“But based on what I’ve heard so far, I can’t see how it would be relevant in any way.

“But there may be things that happen in the next – I don’t know how much longer she’s going to testify, but in the remainder of her testimony that could somehow make that relevant.

198

“At this point in time, I don’t think it is relevant, and I’m going to direct you not to get into it, at least at this point in time. All right.

“But you’ll be free to raise the issue again with me later on if that need be.”

Tr. 5086-87.

Standard of Review

This court reviews whether evidence is relevant under OEC 401for errors

of law. State v. Gibson, 338 Or 560, 113 P3d 423 (2005).

Argument

The evidence of involvement in a prior murder in Colorado was

relevant to support defendant’s theory of the case – that was the primary

actor behind the murder of the victim. It would have tended to disprove the

state’s theory that defendant was the central figure, the ringleader and chief

planner, behind the crimes. Further, given the centrality of the question of

role, defendant’s Due Process rights to a fair trial were denied by the

trial court’s evidentiary ruling.

OEC 401 provides:

“‘Relevant evidence’ means evidence having any tendency to make the existence of any fact that is of consequence to the determination of the action more probable or less probable than it would be without the evidence.”

199

OEC 402 provides:

“All relevant evidence is admissible, except as otherwise provided by the Oregon Evidence Code, by the Constitutions of the United States and Oregon, or by Oregon statutory and decisional law. Evidence which is not relevant is not admissible.”

The relevance requirement is not a high bar to admission of evidence.

OEC 401 creates “a ‘very low threshold’ for the admission of evidence, that is,

‘evidence is relevant so long as it increases or decreases, even slightly, the

probability of the existence of a fact that is of consequence to the determination

of the action.’” State v. Sparks, 336 Or 298, 307, 83 P3d 304, cert den, 543 U.S.

893 (2004), quoting State v. Barone, 329 Or 210, 238, 986 P2d 5 (1999), cert

den, 528 US 1086 (2000).

In the alternative, due process requires that a defendant be allowed to

present relevant evidence that supports his theory of the case, notwithstanding

the Oregon Evidence Code. See State v. Cazares-Mendez, 350 Or 49, 520, 256

P3d 104, 120 (2011) (finding error under Federal Due Process Clause for

excluding trustworthy, exculpatory hearsay statements despite those statements

not qualifying under statutory hearsay exception).

Here, although defendant did not make a formal offer of proof, the state

made clear what the disputed evidence was: “Mr. conduct or

involvement in a murder case for which he received immunity to testify. He

actually testified in a drive-by shooting in Colorado, unrelated entirely to this

200

event.” Tr. 5081. That evidence was relevant because defendant’s theory of

the case was that it was who murdered the victim. Defendant’s ability to

persuade the jury that had a larger role in the origination of the plan was

critically important, particularly in light of Crabtree’s testimony that minimized

role. Crabtree described defendant directing every action

during the murder. Tr. 5094, 5096, 5099, 5100, 5012, 5103, 5107, 5110.

Crabtree testified that defendant forced to participate in the

dismemberment of the body, even to the point where apparently

experienced a seizure. Tr. 5116. She described coming around from that

seizure, apparently in a daze and confused as to what he was doing and asking

where he was. Tr. 5118.

The excluded evidence would have stood in stark contrast to Crabtree’s –

and the state’s – narrative that was a mere tool in defendant’s scheme.

By refusing to allow the jury to learn that had been a previous

participant in a murder, the trial court’s ruling deprived defendant of a fair trial.

Because of the centrality of the evidence to defendant’s defense, that error

violated his Due Process rights under the United States Constitution. See

Chambers v Mississippi, 410 US 284, 302, 93 S Ct 1038, 35 L Ed 2d 297

(1973) (hearsay rule of evidence “may not be applied mechanistically to defeat

the ends of justice”).

201

EIGHTY-SIXTH ASSIGNMENT OF ERROR The trial court erred by denying defendant’s motion to suppress evidence

derived from the use of tracking devices.


Before trial, defendant moved to suppress evidence derived from the

state’s use of tracking devices. Motion to Suppress GPS Tracking; Consent

Search, ER 76-77; Memorandum of Law “A” in Support of Motion to Suppress

GPS Tracker and All Derivative Evidence, ER 78-98; Memorandum of Law

“B” in Support of Motion to Suppress GPS Tracker and All Derivative

Evidence, ER 99-105. In the first memorandum, defendant argued that using the

trackers was a warrantless search, because the federal warrant that authorized

them did not satisfy ORS 133.619(6):

“ORS 133.619(6) specifically enumerates criteria for issuance of a search warrant to place a GPS tracker on a vehicle. Where those criteria * * * are not satisfied, the warrant is invalid. A warrant that is invalid by reason of non-compliance with an Oregon statute remains an invalid warrant and as such, any search pursuant thereto is warrantless for purposes of analyzing the search’s reasonableness under Article I, section 9.”

Memorandum of Law “A” in Support of Motion to Suppress GPS Tracker and

All Derivative Evidence, ER 90.

The state argued that the federal warrant satisfied ORS 133.619(6) by

demonstrating probable cause that someone was committing or about to commit

202

a crime. State’s Response to Defendant’s Motion to Suppress GPS

(Location) Tracking, ER 164-208. Alternatively, the state argued that the police

did not use the tracking devices to discover any evidence, and that all the

evidence would inevitably have been discovered without using them. Id. at 27-

32.

At the hearing on the suppression motion, the state reiterated its argument

that the warrant satisfied ORS 133.619(6). Tr. 635. Alternatively, the state took

the position that the federal warrant made the search constitutional under

Article I, section 9, even if the warrant did not satisfy ORS 133.619(6). Tr. 637-

38. In addition, the state argued that if the search was unconstitutional,

suppression was not required, because the evidence was discovered through

sources that were independent from the tracking devices. Tr. 643-56. Finally,

the state argued that even if the search was unconstitutional, suppression was

not required, because all the evidence would inevitably have been discovered

by other means. Tr. 657-58.

In response, defendant argued that the warrant was invalid, because the

affidavit did not establish probable cause to believe that someone was

committing or about to commit one of the crimes specified in ORS 133.619(6).

Tr. 662-667. Defendant also contested the state’s claims that all the evidence

was discovered independently from the use of the tracking devices and would

inevitably have been discovered through other means. Tr. 667-72.

203

The court did not reach the issue of whether the federal warrant had

to satisfy the requirements of ORS 133.619(6) to be a valid warrant under

Article I, section 9. Findings of Fact Relating to Motions to Suppress Hearings,

ER 209-224; Opinion and Order Denying Motion to Suppress GPS Tracking;

Consent Search, ER 249-254. Instead, the court assumed that the warrant had to

satisfy those requirements and concluded that it did so. In particular, the court

ruled that the affidavit established probable cause that someone was committing

or was about to commit one of the specified crimes. Id. at 2-3. In addition, the

trial court ruled that even if the search was unconstitutional, suppression was

not required, because all the evidence inevitably would have been and was, in

fact, discovered through sources independent from the tracking devices. Id. at 4.

For those reasons, the trial court denied defendant’s motion to suppress

evidence derived from the use of the tracking devices. Id. at 6.

At trial, the state offered extensive evidence derived from the use of the

tracking devices. See, e.g., Ex 66, 67, 596-607 (maps based on information

from the tracking devices showing the movements of defendant’s cars).

Defendant objected and argued, among other things, that the evidence was

inadmissible because it was subject to suppression for the reasons presented in

the motion to suppress. Tr. 5376. The trial court overruled the objection for the

reasons stated in its ruling on the motion to suppress. Id.

204

Standard of Review

“When a court reviews a challenge to the sufficiency of an affidavit

supporting a magistrate’s issuance of a warrant, the question before the

reviewing court remains a legal one. A reviewing court asks whether, based on

the facts shown by the affidavit, a neutral and detached magistrate could

conclude (1) that there is reason to believe that the facts stated are true; and (2)

that the facts and circumstances disclosed by the affidavit are sufficient to

establish probable cause to justify the search requested.” State v. Castilleja, 345

Or 255, 264, 192 P3d 1283, adh’d to on recons, 345 Or 473 (2008).

Argument

As this court has explained,

“If the government seeks to rely on evidence in an Oregon criminal prosecution, that evidence must have been obtained in a manner that comports with the protections given to the individual by Article I, section 9, of the Oregon Constitution. It does not matter where that evidence was obtained (in-state or out-of-state), or what governmental entity (local, state, federal, or out-of-state) obtained it; the constitutionally significant fact is that the Oregon government seeks to use the evidence in an Oregon criminal prosecution. Where that is true, the Oregon constitutional protections apply.”

State v. Davis, 313 Or 246, 254, 834 P2d 1008 (1992).

Under Davis, the defendant in an Oregon prosecution is entitled to

suppression of evidence derived from a search that violated Article I, section 9,

even if the search was authorized by a federal warrant that satisfied federal law.

205

See generally Wayne R. LaFave, 4 Search and Seizure § 1.5(c), 950-60 (5th

ed. 2012) (discussing suppression and choice-of-law issues arising from various

“silver platter” scenarios, i.e., cases in which a prosecution in one jurisdiction

seeks to use evidence discovered in a search conducted under the authority of

another jurisdiction in which the applicable law is more permissive).

I. Using the trackers violated Article I, section 9. Under Article I, section 9, of the Oregon Constitution, people have the

right to be “secure in their persons * * * against unreasonable search[.]” Here,

the police searched defendant by using tracking devices to monitor and collect

information about his movements. State v. Campbell, 306 Or 157, 172, 759 P2d

1040 (1988).

With certain exceptions, a search is constitutional only if it is conducted

pursuant to a valid warrant. State ex rel. Juvenile Dep’t of Clackamas Cty. v.

M.A.D., 348 Or 381, 389, 233 P3d 437 (2010). What constitutes a valid warrant,

for purposes of Article I, section 9, is determined in part by ORS Chapter 133.

In particular, as pertinent here, ORS 133.619(6) provides:

“(6) A warrant authorizing the installation or tracking of a mobile tracking device shall be issued only when based upon the submission of an affidavit or oral statement as described in ORS 133.545, which affidavit or statement demonstrates that probable cause exists to believe that an individual is committing or is about to commit [certain crimes].”

206

(emphasis added). Under that provision, a warrant authorizing the use of a

tracking device is valid only if it is based on an affidavit or other statement

demonstrating probable cause to believe than an individual “is committing or

about to commit” a crime. Id.

Here, the affidavit supporting the federal tracking warrants did not

demonstrate probable cause that an individual was committing or about to

commit a crime. The affidavit states that the cars were “presently being used in

furtherance of” certain crimes, and that there was probable cause to believe that

installing and using the tracking devices would lead to evidence of those crimes

and identification of the perpetrators. Affidavit of Brett S. Hawkinson, ER 1-10.

Defendant assumes for the sake of argument that the affidavit states facts

sufficient to establish probable cause to believe that the cars were “presently

being used in furtherance of” the crimes mentioned in the affidavit, and that

they would be used to commit similar crimes in the future. But that does not

establish that anyone was actually “committing or about to commit” a crime at

the moment when the affidavit was filed. ORS 133.619(6) limits the issuance of

warrants authorizing the installation of a tracking device to situations where

doing so interrupts an ongoing crime or prevents an imminent one. Here, as far

as the affidavit shows, no one was committing any crime, or about to do so,

when the affidavit was created, even if the cars were being used “in furtherance

of” past or future crimes. Because the affidavit does not establish probable

207

cause that someone “is committing or about to commit” a crime, the

warrants did not satisfy ORS 133.619(6). Accordingly, the warrants were not

valid, for purposes of Article I, section 9, and the searches were warrantless

under Oregon law. Because no warrant exception applies, the use of the

tracking devices was unconstitutional, and evidence derived from them is

subject to suppression.

II. ORS 136.432 does not preclude suppression. The state may argue that even if the warrant did not satisfy the

requirements of ORS 133.619(6), ORS 136.432 precludes suppression. That

statute provides:

“A court may not exclude relevant and otherwise admissible evidence in a criminal action on the grounds that it was obtained in violation of any statutory provision unless exclusion of the evidence is required by:

“(1) The United States Constitution or the Oregon Constitution;

“(2) The rules of evidence governing privileges and the admission of hearsay; or

“(3) The rights of the press.”

But ORS 133.619(6) regulates the issuance of a search warrant, not the

search itself. Here, the search was unlawful not because it violated ORS

133.619(6), but because, being a warrantless search to which no exception

applied, it violated Article I, section 9. Consequently, ORS 136.432 is

inapposite.

208

III. The state derived evidence from the use of the tracking devices. The state argued below that even if the search was unconstitutional,

suppression was not required, because the evidence would inevitably have been

and was, in fact, discovered through independent sources. The evidence at the

suppression hearing focused on the events that led to the discovery of the burial

site by the police. But regardless of whether the police discovered the burial site

independently from the use of the tracking devices, and regardless of whether

they inevitably would have discovered the burial site without using the devices,

the state introduced extensive evidence of defendant’s movements at trial

derived from the tracking devices. See Ex 66, 67, 596-607 (maps illustrating the

movements of defendant’s cars during relevant time periods). In light of that

subsequent development, the state plainly derived evidence from the use of the

tracking devices, even if they were not used to discover the burial site. The

state’s contrary claim at the suppression hearing lacked merit.

EIGHTY-SEVENTH ASSIGNMENT OF ERROR

The trial court erred by admitting evidence derived from the use of

tracking devices.


The state filed a motion in limine asking the court to admit evidence

derived from the tracking devices. State’s Motion in Limine Regarding

209

Trackers, ER 303-315. At the hearing on the motion, the state presented

testimony about how the tracking devices work. An FBI official testified that

they work by receiving information from satellites that are part of the “Global

Positioning System” (GPS). The devices use that information together with

certain computer algorithms to calculate their position, and then transmit that

information to computer systems at the FBI through the cellular telephone

infrastructure. Tr. 1101, 1105-06. The FBI then transmits the information to the

user. Tr. 1107-08.

The official testified that the FBI would not use the trackers alone to

establish the location of an object, because “we have not put forensic protocols

in place.” Tr. 1094. According to the official, the trackers are not forensically

reliable because “we haven’t done extensive testing over time.” Id. The gist of

his testimony was that the trackers were sufficiently reliable to be useful for

investigative purposes, but that no one from the FBI could come to court and

testify that they were valid as a matter of forensic science. The official did not

know the error rate of the devices, Tr. 1107, but explained that their accuracy

can be impaired by topography, geography, and atmospheric effects. Tr. 1103.

In addition, the official was unable to provide certain information about

how the trackers work because the information was privileged under federal

law. See, e.g., Tr. 1107 (“I’m not permitted to discuss the specifics about the

system that provides the data to our end users.”); see also State’s Motion in

210

Limine Regarding Trackers ER 303-315. (citing and attaching the “Touhy

Letter” from the FBI to the prosecutor explaining the federal-law limitations on

officials’ testimony regarding the tracking devices). Specifically, the official

could not describe the computer software by which the information from the

trackers was transmitted from the FBI to the user. Tr. 1105-08.

At the close of the hearing, the state asked the court to take judicial

notice of the scientific validity of the GPS system used by the tracking devices.

Tr. 1117. The state also argued that the foundational testimony established that

the devices were reliable. Tr. 1117-18. The court pointed out that the trackers

used software with an unknown error rate. Tr. 1118. The state responded by

emphasizing the ubiquity of GPS technology. Id. The state’s primary argument

was that the court did not need to determine whether evidence derived from the

devices was scientifically valid, because of the “universal acceptance” of the

GPS technology they used. Tr. 1120.

In response, defendant argued, among other things, that the state had not

established the evidence’s scientific validity: “It is Brown and O’Key * * * and

there’s no information regarding the reliability or accuracy of the potential error

rates of this stuff.” Tr. 1131.

After the hearing, defendant filed a memorandum of law objecting to the

admission of evidence derived from the use of the tracking devices. Corrected

Defense Memorandum of Law Regarding GPS Tracker Evidence and the FBI

211

Touhy Letter, ER 316-325. Among other grounds, defendant argued that

evidence derived from the tracking devices was scientific evidence whose

validity had not been established. Id. at 2, 8.

The state filed a memorandum in response. State’s Response to

Defendant’s Memorandum of Law Regarding GPS Tracker Evidence, ER 164-

208. The state argued that the evidence at the hearing had established the

evidence’s scientific validity. Alternatively, the state asked the court to take

judicial notice of the scientific validity of GPS technology. Id. at 2-3 (citing

State v. Branch, 243 Or App 309, 311, 259 P3d 103 (2011)).

The trial court ruled that evidence derived from the tracking devices was

scientific evidence. Tr. 4106. The court took judicial notice of facts it

understood as establishing that “the accuracy and reliability of GPS cannot

reasonably be disputed.” Tr. 4108-4112. Alternatively, the court applied the

multifactor test established in State v. Brown, 297 Or 404, 417, 687 P2d 751

(1984), to GPS technology and concluded that such technology is scientifically

valid on the basis of judicially noticed facts about its history, reliability, and

general use. Tr. 4112-4116. The court ruled that the scientific validity of the

GPS system, coupled with the foundational testimony offered at the hearing,

formed an adequate foundation for the admission of evidence derived from the

tracking devices. Tr. 4118.

212

Standard of Review

An appellate court reviews a trial court’s determination of the validity of

scientific evidence for legal error. Jennings v. Baxter Healthcare Corp., 331 Or

285, 299, 14 P3d 596 (2000).

Argument

Because of its special persuasiveness, scientific evidence is admissible

only if it is scientifically valid. State v. O’Key, 321 Or. 285, 291, 899 P.2d 663,

672 (1995). Evidence is scientifically valid if foundational evidence shows that

it satisfies the multifactor test established in State v. Brown, 297 Or 404, 417,

687 P2d 751 (1984). Alternatively, scientific evidence may be admitted without

foundational evidence if its validity is so universally accepted as to be “clear,”

or if the court takes judicial notice of facts establishing its validity. State v.

O’Key, 321 Or 285, 293, 899 P2d 663 (1995); see Laird C. Kirkpatrick, Oregon

Evidence § 702.04 5th ed (2007).

Here, the state offered scientific evidence derived from the use of the

tracking devices. For the following reasons, the evidence’s scientific validity

was not established. Accordingly, the trial court erred by admitting it.

I. The state’s foundational evidence did not establish the evidence’s scientific validity.

The factors pertinent to whether evidence is scientifically valid include:

“(1) The technique’s general acceptance in the field;

213

“(2) The expert’s qualifications and stature;

“(3) The use which has been made of the technique;

“(4) The potential rate of error;

“(5) The existence of specialized literature;

“(6) The novelty of the invention; and

“(7) The extent to which the technique relies on the subjective interpretation of the expert.”

Brown, 297 Or at 417.

In addition, a court may consider

“(1) The potential error rate in using the technique;

“(2) The existence and maintenance of standards governing its use;

“(3) Presence of safeguards in the characteristics of the technique;

“(4) Analogy to other scientific techniques whose results are admissible;

“(5) The extent to which the technique has been accepted by scientists in the field involved;

“(6) The nature and breadth of the inference adduced;

“(7) The clarity and simplicity with which the technique can be described and its results explained;

“(8) The extent to which the basic data are verifiable by the court and jury;

“(9) The availability of other experts to test and evaluate the technique;

“(10) The probative significance of the evidence in the circumstances of the case; and

“(11) The care with which the technique was employed in the case.”

214

Id. at 417 n 5.

Applying those factors, the state’s foundational evidence failed to

establish the tracking devices’ scientific validity.

A. The foundational evidence contains crucial gaps. The state’s foundational evidence showed that the devices work by (1)

receiving information from GPS satellites, (2) using that information together

with certain computer algorithms to calculate their position, (3) transmitting

information about their position through the cellular phone infrastructure to FBI

computers, which then (4) pass the information along to the user. Tr. 1101,

1105-06. But, apparently because the information was privileged under federal

law, the foundational evidence included no information about the computer

system by which the FBI received information from the devices and passed it

on to the user in steps (3) and (4). Id.

The foundational evidence was insufficient to establish the evidence’s

scientific validity, for several reasons. First, as the FBI official candidly

admitted, the devices had not been subjected to sufficient scientific testing to

meet forensic protocols. Tr. 1094. The use of such testing is fundamental to the

scientific process and the absence of it here shows that the evidence was not

scientifically valid. Second, the official also admitted that he had no

information about the devices’ error rate. Tr. 1107. Without such information, it

is impossible to know whether the evidence was scientifically valid. Third, the

215

official testified that topography, geography, and atmospheric conditions

could affect the devices’ accuracy, Tr. 1103, but there was no information about

the extent of those effects or whether they occurred in this case. Again, without

that information, the foundational evidence does not establish the proffered

evidence’s scientific validity.

More fundamentally, the record is devoid of information about two

critical aspects of the devices’ operations. First, there was no evidence about

their internal software which calculated their position based on information

received from GPS satellites. As far as the record shows, that software is not

sufficiently reliable to make the evidence scientifically valid. Second, there is

nothing in the record describing the process whereby information was

processed and transmitted by the FBI, once it was received from the devices.

Because of those crucial gaps in the foundational evidence, the record is

insufficient to establish the evidence’s scientific validity.

B. The foundational evidence was silent, at best, on numerous important Brown factors.

In addition to those specific gaps, the foundational evidence was also

silent, at best, regarding several of the Brown factors. For instance, the devices’

acceptance in the field was limited to investigative use, but the evidence

showed it should not be used forensically. As noted, its error rate was unknown.

There was no mention of a specialized literature on the subject. There was no

216

information about internal safeguards. And finally, certain aspects of how

the devices work could not be described at all, much less with any degree of

clarity or simplicity. See Brown, 219 Or at 417, 417 n 5 (listing those factors).

In light of the record or lack thereof on those Brown factors, the state’s

foundational evidence did not establish the scientific validity of evidence

derived from the devices.

II. The facts judicially noticed by the court did not establish the evidence’s scientific validity.

As noted, foundational evidence is not necessary to establish the

scientific validity of proffered evidence in a so-called “clear case,” or a case in

which the court properly takes judicial notice of facts establishing the

evidence’s validity. O’Key, 321 Or at 293. Here, the court took judicial notice

of extensive facts about GPS technology, including its history, ubiquity, and

statistics about its accuracy. Tr. 4109-11. The court used those facts to

determine that GPS technology is scientifically valid, and inferred on that basis

that evidence derived from the tracking devices was also scientifically valid. In

addition, the court applied the Brown factors to the judicially-noticed GPS facts

to reach the same conclusion. Tr. 4108-18

But a chain is only as strong as its weakest link. The problem with the

trial court’s reliance on judicially-noticed facts about GPS technology is that the

devices at issue are not based solely on that technology; instead, they also

217

depend on other technology about which there is no information in the

record. For that reason, even if the court could properly take judicial notice of

all the facts it relied on to establish the scientific validity of GPS technology,

that would not show the scientific validity of evidence derived from the

tracking devices.

For example, as discussed above, in addition to GPS technology, the

devices rely on the FBI’s internal computer systems to process and transmit

data from the tracking devices to the user; and apparently because such

information is privileged under federal law, there was no information presented

in court or judicially noticed about that aspect of the system. Additionally,

while the judicially-noticed facts contain ample information about GPS

technology, they conspicuously omit facts about the accuracy and reliability of

the cellular phone infrastructure on which the devices also depend. The well-

known vicissitudes of that infrastructure diminish the significance of the court’s

conclusion that GPS technology is scientifically valid. It may be, but that tells

us nothing about the accuracy of the information transmitted from the devices

through the cellular infrastructure to the FBI’s internal systems and on to the

user.

To be sure, the devices’ accuracy was confirmed on several occasions

when the police saw the cars where the devices reported them as being. But that

anecdotal information does not establish that evidence derived from the devices

218

is scientifically valid. Indeed, the devices’ inaccuracy was also confirmed

on at least one occasion, when they told Agent Schulz that defendant (or his

car) was spending time in Walton, when in fact he had only been passing

through Walton when the cellular signal dropped off. In light of that failure,

direct observation by the police of the devices’ accuracy on other occasions

does not establish their scientific validity.

In sum, the trial court’s analysis of the scientific-evidence issue

essentially conflated the tracking devices at issue here with GPS technology in

general. Even if it were permissible for the court to take judicial notice of the

validity of the principles on which GPS technology is based, the court did not

take judicial notice of facts sufficient to establish the validity of the evidence

here, because that evidence relies on other technology about which the court

had insufficient information. Accordingly, the trial court erred by concluding

that evidence derived from the tracking devices was scientifically valid and by

admitting it on that basis.

III. The error was harmful. This court will affirm a conviction despite the erroneous admission of

evidence only if there is little likelihood that the evidence affected the verdict.

State v. Davis, 336 Or 19, 32, 77 P3d 1111 (2003). Here, the state introduced

numerous maps illustrating the movement of defendant’s cars during the period

leading up to the murder. Ex 66, 67, 596-607. The maps were created using

219

information derived from the use of the tracking devices. Detective Donaca

testified about the maps and explained how the information they presented

confirmed the state’s theory of the case. Tr. 5589 – 5614. In essence, the state

used information from the tracking devices to create a physical demonstration

of its theory of the case. The demonstration came very nearly at the end of trial,

when it would most effectively have crystallized the state’s theory in the minds

of the jurors. Under those circumstances, this court cannot say that there is little

likelihood that the evidence from the tracking devices affected the verdicts.

EIGHTY-EIGHTH ASSIGNMENT OF ERROR30

The trial court erred in denying defendant’s requested jury instruction

that the jury could consider mercy flowing from the evidence.

EIGHTY-NINTH ASSIGNMENT OF ERROR

The trial court erred in denying defendant’s requested jury instruction on

mercy alone.


Defendant filed a written request for sentencing-phase instructions

including the following: Under the heading, “Mitigating Circumstances

Defined (3),” “A juror is also authorized to consider feelings of mercy that flow



220

from the evidence. The law provides that mercy alone is sufficient to

support a life imprisonment verdict for any juror.”

at ER 287.

Later in defendant’s requested instructions he included the following:

“Mercy (17)

“Each of you as jurors has the individual authority to extend David Ray Taylor mercy for any reason whatsoever.

“The law recognizes and authorizes that any individual juror may base a decision to impose a sentence less than death on mercy alone.”

at ER 301.

At the discussion on the jury instructions, the court addressed the request,

“Again, I think this is an issue for argument, rather than instruction on the law.

Mr. Burris, is there something that says I have to instruct them on this issue?”

Tr. 5854. Defendant responded that there was not, but noted that it was pending

before this court at the time in Washington. Tr. 5854

The state opposed the instructions and the trial court declined to give

them. Tr. 5855. After provided the parties with its written instructions that it

intended to give to the jury, defendant excepted to the court’s failure to give his

requested special instructions. Tr. 5965.

221


A party is entitled to have a requested jury instruction based on its theory

of the case if the instruction correctly states the law. State v. McBride, 287 Or

315, 319, 599 P2d 449 (1979). In determining whether a trial court’s

instructions accurately and completely state the law, the instructions are read as

a whole. State v. 328 Or 248, 266, 971 P2d 879 (1999); State v.

Rogers, 313 Or 356, 383, 836 P2d 1308 (1992).

The failure to properly instruct a capital jury also infringes on a

defendant’s federal due process rights. In reviewing such a federal claim, a

court asks “whether there is a reasonable likelihood that the jury has applied the

challenged instruction in a way that prevents the consideration of

constitutionally relevant evidence.” Buchanan v. Angelone, 522 US 269, 276

118 S Ct 757, 139 L Ed 2d 702 (1998). The law “does not require that the

defendant prove that it was more likely than not that the jury was prevented

from giving effect to the evidence,” but “the standard requires more than a mere

possibility of such a bar.” Johnson v. Texas, 509 US 350, 367, 113 S Ct 2658,

125 L Ed 2d 290 (1993).

Combined Argument

Because (1) mercy is an appropriate subject for consideration by a capital

jury, and (2) mercy can, by itself, justify a sentence other than death, the trial

222

court violated defendant’s rights under the Sixth, Eighth, Fourteenth

Amendments to the United States Constitution.

Defendant acknowledges that this court addressed and rejected a similar

argument in State v Washington, 355 Or 612, 652, 330 P3d 596 cert den, 135 S

Ct 685 (2014). There, this court held that it was not improper to fail instruct the

jury that any juror could decline to impose a sentence of death based on “mercy

alone.” Here, however, defendant requested that the jury be instructed that it

may consider “feelings of mercy that flow from the evidence.” In Washington,

this court drew a distinction between instructions on “mercy” or “sympathy”

alone and instructions on “sympathy is based on mitigating evidence.” Id. at

654 (quoting State v. Moore, 324 Or 396, 472, 927 P2d 1073 (1996)). Here, in

the context of defendant’s requested instructions as a whole, he was asking that

the jury be instructed that it could spare his life based on mercy that flowed

from the evidence. This case is, therefore, distinguishable from Washington.

I. A jury may be instructed not to return a penalty-phase verdict based on sympathy, but that does not bar the jury from returning a verdict based on mercy.

The Due Process Clause does not require a state trial court to instruct a

jury that they may decide a defendant’s fate based on sympathy. Johnson v.

Texas, 509 US at 371-72. To the contrary, the Court has explicitly recognized

the tension between “jurors’ emotional sensitivities” and the paramount concern

that capital sentencing “must be reliable, accurate, and nonarbitrary.” Saffle v.

223

Parks, 494 US 484, 493, 110 S Ct 1257, 108 L Ed 2d 415 (1990). To that

end, instructions barring jurors from decisions based on sympathy are not only

permissible under the Fourteenth Amendment but may support its ends, by

ensuring that jurors enter their deliberations charged to set aside any sympathies

they may harbor for victims. See California v. Brown, 479 US 538, 542–543,

107 S Ct 837, 93 L Ed 2d 934 (1987) (upholding an instruction that the jury

could not base its sentencing decision on sympathy).

Likewise, this court, in State v. Moen, held that it was permissible for a

capital trial court to instruct a jury that they could not consider sympathy. 309

Or 45, 86-87, 786 P2d 111, 123 (1990). Moen justified this exclusion by relying

on Brown ‘s characterization of sympathy as an “extraneous emotional factor.”

479 US at 543. But sympathy jurisprudence should not be read as an

impediment to the giving of jury instructions requesting that jurors engage in

moral reasoning: “Limiting a sentencer’s discretion to react based on unfocused

sympathy is not the equivalent of preventing a sentencer from giving a

‘reasoned moral response[.]’” Johnson v. Texas, 509 US at 388 ( J.,

dissenting).

A. To exercise mercy is to act on moral reasoning; mercy is thus distinct from sympathy.

It is extremely common to see “mercy,” “forgiveness,” “sympathy,” and

“charity” conflated with one another and thus used interchangeably in

224

American jurisprudence and academic scholarship. Kathleen Dean Moore,

How to Distinguish Forgiveness, Mercy, and Pardons: Justice, Mercy, and the

Public Interest 181 (1989). Such neglect of their crucial distinctions yields

grave philosophical and legal misunderstandings. One cannot develop an

adequate understanding of mercy and its role in capital sentencing until

“mercy” and “sympathy,” are distinguished.

“Sympathy” generally means “[a] feeling of loyalty: tendency to favor or

support.” Webster’s at 2317. Sympathy is denoted by two key descriptors. First,

sympathy is like any bias, preference, or prejudice; it is an attribute of a person

which might, without reason, improperly affect a juror’s decision. When jurors

act on an irrational basis to decide the outcome of a judicial proceeding, the

fairness of that proceeding is suspect. Johnson v. Texas, 509 US at 371-72.

Second, sympathy is reflexive. It is a response to external stimuli; a reaction to

the “sameness” perceived in another, a “labile feeling, [that] may be said to

depend, if not on whim, at least on impulse.” David Konstan, Clemency as a

Virtue,100 Classical Philology 337 § 100.4 (2005).

In contrast, Webster’s defines mercy as “compassion or forbearance

shown especially to an offender or to one subject to one’s power * * *.”

Webster’s at 1413. Mercy, then, differs from sympathy on both of the key

descriptors. First, mercy is not an irrational attribute of a juror, but instead is a

rational process, a “reasoned moral response” of precisely the sort the Court

225

describes in the Penry line of cases. Penry v. Lynaugh, 492 US 302, 310,

109 S Ct 2934, 106 L Ed 2d 256 (1989), abrogated by Atkins v. Virginia, 536

US 304, 122 S Ct 2242, 153 L Ed 2d 335 (2002).

Mercy is non-reactive. Mercy originates with the actor. It is not a

response to a quality or trait that originated in the person or object perceived.

Mercy is not an emotion; it is an act or exercise of reasoned restraint when the

reflective alternative is strictness or severity.

Therefore, in relation to similar terms, “mercy” is a virtue exercised by

someone in a position of power that manifests itself in a reasoned deliberative

decision to exercise forbearance and leniency. In those terms, “mercy” is a

necessary and inherent concept of mitigation.

B. Capital sentencing jurors may render verdicts other than death on mercy alone.

In Gregg v. Georgia, the United States Supreme Court upheld the

Georgia capital sentencing scheme which asked the jury to make a general

finding of whether the defendant deserved death. In upholding that statutory

scheme the Court reasoned that a statutory scheme that allowed the jury to

impose a sentence less than death without being tied to any specific evidence

was constitutional. 428 US 153, 196-97, 96 S Ct 2909, 49 L Ed 2d 859 (1976).

See also Drake v. Kemp, 762 F2d 1449, 1459 (11th Cir 1985) (“In the current

Georgia capital punishment regime, the sentencing jury has complete discretion

226

to choose between life imprisonment or death after the finding of one

statutory aggravating circumstance. * * * Mercy may be a part of that

discretion.”)

In multiple other cases the Court has noted that some capital sentencing

schemes permit a sentence less than death based on the jury’s general moral

deliberation unrelated to specific mitigation evidence. See 504 US at

751 (Scalia, J., dissenting). See also Woodson v. North Carolina, 428 US 280,

318, 96 S Ct 2978, 49 L Ed 2d 944 (1976) (Rehnquist, J. dissenting) (“Under

the Georgia system, the jury is free to recommend life imprisonment, as

opposed to death, for no stated reason whatever. The Georgia Supreme Court

cannot know, therefore, when it is reviewing jury sentences for life in capital

cases, whether the jurors found aggravating circumstances present, but

nonetheless decided to recommend mercy, or instead found no aggravating

circumstances at all and opted for mercy.”).

C. Numerous jurisdictions have deemed mercy an acceptable consideration for a capital sentencing jury.

Although some states continue to find that mercy is an improper

consideration in capital sentencing, or that juries may only exercise mercy when

it is tied to specific mitigating evidence, courts in many states have held that

juries may exercise mercy in the absence of any specific mitigating evidence,

and regardless of whether the state provides an instruction prohibiting the

227

consideration of sympathy. State v. Clemmons, 753 SW 2d 901, 910 (Mo

1988) (Missouri distinguishes between sympathy and mercy, finding that

sympathy is unacceptable while mercy is allowable); Rosemond v. Catoe, 383

SC 320, 680 S E 2d 5 (2009) (allowing jury’s consideration of mercy evidence

in the sentencing phase); State v. Rhines, 548 N W 2d 415, 444 (SD 1996)

(finding that the jury was appropriately instructed that it could “fix the penalty

at life imprisonment, if you see fit to do so, for any reason satisfactory to you,

or without any reason.”); State v. Kleypas, 272 Kan 894, 1034, 40 P3d 139

(2001) (making mercy itself a stand-alone mitigating factor).

Notably, in Washington, the pattern jury instructions establish the

appropriateness of the jury’s exercise of mercy in capital sentencing, whether or

not it is tied to any mitigating evidence, because mercy itself is a mitigating

factor: “The appropriateness of the exercise of mercy is itself a mitigating factor

you may consider in determining whether the State has proved beyond a

reasonable doubt that the death penalty is warranted.” State v. Gentry, 125 Wn

2d 570, 648, 888 P2d 1105, 1115 (1995) (favorably cited the committee

comments to WPIC 31.03).

For the foregoing reasons, mercy is an appropriate and constitutional

consideration for a capital jury. Thus, the trial court erred in refusing to allow

defendant the opportunity to explore the concept of “mercy” during voir dire

and in denying defendant’s proposed sentencing instruction.

228

II. Oregon’s open-ended capital sentencing scheme means that a penalty-phase jury’s decision to impose a sentence other than death need not be based on specific mitigating evidence, but may instead derive from general moral reasoning.

Oregon’s capital sentencing scheme states:

“(1)(a) Upon a finding that the defendant is guilty of aggravated murder, the court, except as otherwise provided in subsection (3) of this section, shall conduct a separate sentencing proceeding * * *

“(b) 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.

ORS 163.150.

The final question is very broad. It asks whether something “should”

occur, as opposed to “is eligible for” or “qualifies for.” The statute could have

read, “Did the state establish that defendant is deserving of a death sentence.”

But it did not do so. Instead, it speaks in ordinary terms and philosophy beyond

the rules of evidence. It is, ultimately, not a legal question and stands apart from

formalistic rules of evidence, burdens of proof, and maxims of statutory

229

construction. The question invokes a “reasoned moral response” by the jury.

State v. Wagner (Wagner II), 309 Or 5, 19, 786 P2d 93 (1990).

The issue in this case can be resolved simply, at a sub-constitutional

level, through statutory analysis PGE v. Bureau of Labor & Industries, 317 Or

606, 611, 859 P2d 1143 (1993) (stating, among other things, that “words of

common usage typically should be given their plain, natural, and ordinary

meaning.”). Ordinarily “should” means “to express duty, obligation, necessity,

propriety or expediency.” Webster’s at 2104. The term, by its plain and ordinary

meaning, asks whether a defendant “should” receive a death sentence. The

legislature is explicitly asking the jury to make a moral judgment and arrive at

the just result. To answer that question, and to arrive at a morally just result that

is fully a product of reasoned deliberation, mercy must be permitted.

III. To exclude mercy from penalty-phase jury instructions dehumanizes the jury and diminishes the quality of the jury’s moral reasoning.

The Eighth Amendment is grounded in history, and in particular the

language is rooted in the “understanding of the Eighth Amendment before the

end of the 19th century.” Harmelin v. Michigan, 501 US 957, 965, 111 S Ct

2680, 115 L Ed 2d 836 (1991). Similarly, the Sixth Amendment right to a jury

trial is grounded in principles with deep historical roots. United States v.

Booker, 543 US 220, 238-39, 125 S Ct 738, 160 L Ed 2d 621 (2005). As

discussed below, the concept of “mercy” has a rich historical tie to our legal

230

system, and our method of moral reasoning. N.E. Simmonds, Judgment and

Mercy, 13 Oxford J L Studies 52 (1993). Mercy serves to mitigate a harsh

justice; it is a factor in just decision making, preventing judgment from being

overly punitive.

The roots of mercy in the Judeo-Christian tradition extend back to the

Old and New Testament. Micah (King James) 6:8; Luke 6:36; Hebrews 2:17

(“that he might be a merciful and faithful high priest in things pertaining to

God, to make reconciliation for the sins of the people.”).

The history of Western criminal justice is a strong testimony to man’s

unwavering commitment and unrelenting effort to incorporate mercy into the

legal system. Carla Ann Hage Johnson, Entitled to Clemency: Mercy in the

Criminal Law, 10 Law and Philosophy 109 (1991). The power to punish has

always been accompanied by the power to be merciful. Id. “To eliminate the

concept of mercy is to ignore the message of history. For in every historical

account of criminal justice, mercy has been a virtue in the judicial system.” Id.

The functional integration of mercy in criminal law has ancient roots.

Samuel T Morison, The Politics of Grace: On the Moral Justification of

Executive Clemency, 9 Buff Crim L Rev 1, 18-25 (2005). The

institutionalization of mercy in criminal law can be traced back at least as far as

the law code of Hammurabi and classical Rome. Id.

231

In medieval and early-modern England mercy was commonly used to

characterize and explain low conviction rates, the frequent recourse to

mitigating circumstances, and the flow of royal pardons. Patricia McCune, The

Ideology of Mercy in English Literature and Law, 1200-1600 (1989). As one

English judge stated to juries, the prerogative of mercy was “the brightest jewel

in the British crown, and the most precious of the rights of the people.” Edward

Christian, Charges Delivered to Grand Juries in the Isle of Ely 283 (1819).

In England’s African and American colonies, governors could also

exercise mercy. Johnson, Entitled to Clemency. It was through this vehicle that

mercy came to have a place in American law. Although the Founding Fathers

sought to rid themselves of as much colonial and monarchical baggage as

possible, they agreed that there was a need for mercy in the judicial system. Id.

The issue regarding mercy and justice was not whether there ought to be mercy

in the democratic Constitution but where such a prerogative should be vested.

By vesting prerogative of mercy in the executive, the Founding Fathers hoped

that the executive would be motivated to “exercise restraint” by the fact that the

fate of a man depended on “his sole fiat.” The Federalist 74 (Alexander

Hamilton).

As the Supreme Court observed, mercy has always been “a constituent

part of the judicial system.” United States v. Wilson, 32 US 150, 161, 7 Pet 150,

8 L Ed 640 (1833). To instruct the jury against mercy is to treat the juror as a

232

bureaucratic tool rather than persons capable of and responsible for making

moral judgments. Justice Blackman was alarmed by the dehumanization effect

of anti-mercy instructions: “When a jury member is moved to be merciful to the

defendant, an instruction telling the juror that he cannot be ‘swayed’ by [mercy]

well may arrest or restrain this human response, with truly fatal consequences

for the defendant. This possibility [is] unacceptable.” California v. Brown, 479

US 538, 563, 107 S Ct 837, 93 L Ed 2d 934 (1987) (Blackmun J., dissenting).

The problem persists when jurors are instructed to tie a decision of mercy

to a piece of evidence. The principle of individualized sentencing and giving

heed to particulars lies at the heart of both the historical and contemporary

models of capital mercy. To instruct the jury against considering mercy is

inherently contradictory to the purpose of individuation and mitigating evidence

in capital sentencing.

NINETIETH ASSIGNMENT OF ERROR

The trial court erred when it denied defendant’s motion to delay

enforcement of restitution.


At the May 20, 2014, sentencing hearing, the state submitted a written

restitution schedule. Defendant requested more time to respond to the state’s

restitution request and noted that he might object after reviewing the state’s

233

documentation, also noting, “Your Honor, that – to put on the record that he

will not be in the position to pay any restitution on death row.” Tr. 6369. The

court provided defendant 30 days to submit an objection to the restitution

schedule. Tr. 6369.

On June 16, 2014, defendant filed a written Objection/Request to Delay

Enforcement of Restitution. A copy of that filing is attached at ER 347-349. In

that objection, defendant argued that ORS 161.675(1) allows a trial court order

the payment of a sum of money for any purpose during a person’s incarceration

only “if the court expressly finds that the defendant has assets to pay all or part

of the amounts ordered.”

The trial court responded with a written Order Denying

Objection/Request to Delay Enforcement of Restitution, attached at ER 350-

351. The court acknowledged that “the defense has demonstrated Mr. Taylor’s

inability to pay restitution” but held that delay would not benefit defendant

because he will likely never be able to pay in the future, and cited its

discretionary authority over delaying restitution under ORS 137.106(4)(a).

Standard of Review

Compliance with statutory authority in imposing a sentence is reviewed

for errors of law. State v. Jackson/Hoang, 145 Or App 27, 29 n 4, 929 P2d 323

(l996), rev den, 326 Or 390 (l998).

234

Argument

The well-settled rule in Oregon is that in imposing punishment for a

criminal offense, the court “is limited strictly to the provisions of the applicable

statute, and any deviation from the statute in the mode, extent or place of

punishment renders the judgment void.” State v. Cotton, 240 Or 252, 254, 400

P2d 1022 (l965). “When a court acts beyond the bounds of its sentencing

authority, it infringes upon the power of the legislature to determine the manner

of punishment. A sentence must be in conformity with the governing statute;

any non-conforming sentence is void for lack of authority and totally without

legal effect.” State v. Leathers, 271 Or 236, 240, 531 P2d 901 (l975). See also

State ex rel Huddleston v. Sawyer, 324 Or 597, 615, 932 P2d 1145, cert den,

522 US 994 (l997) (observing that a trial court lacks inherent power to negate

or disregard statutorily prescribed sentences); State v. Horsley, 168 Or App 559,

562, 7 P3d 646 (2000) (asserting that a trial court has a duty to pass sentence in

accordance with the pertinent sentencing statutes and a sentence’s validity is

determined solely by how well it comports with those statutes).

Upon conviction of an offense, ORS 137.010(7) authorizes a court to

impose a term of imprisonment, a fine, or both. ORS 161.675(1) provides that

when a court sentences a defendant to a term of incarceration, the court may

order that fines and costs be paid during the period of imprisonment only if the

235

court expressly finds that the defendant has assets from which to pay all or

part of the amounts ordered:

“(1) When a defendant, as a part of a sentence * * * is required to pay a sum of money for any purpose, the court may order payment to be made immediately or within a specified period of time or in specified installments. If a defendant is sentenced to a term of imprisonment, any part of the sentence that requires the payment of a sum of money for any purpose is enforceable during the period of imprisonment if the court expressly finds that the defendant has assets to pay all or part of the amounts ordered.”

In State v. Lewis, 236 Or App 49, 52-53, 234 P3d 152, rev den, 349 Or

172 (2010), the Court of Appeals court reviewed a judgment that required an

incarcerated defendant to pay his monetary obligations during the period of his

imprisonment and held that because “the trial court did not make the express

findings concerning [the] defendant’s ability to pay as required by ORS

161.675 (1), * * * we must vacate the sentences and remand for resentencing.”

Here the court ordered defendant to pay his monetary obligations during

his term of incarceration when it denied his motion to delay enforcement of

restitution. That despite the fact that it acknowledged in its order that defendant

had shown his inability to pay. In light of that finding, the order to pay

monetary obligations during a period of incarceration was not statutorily

authorized and must be vacated.

236

The trial court erroneously determined that it had the discretionary

authority to order immediate payment of restitution under ORS 137.106(4)(a).

That section provides,

“(a) If a judgment or supplemental judgment described in subsection (1) of this section includes restitution, a court may delay the enforcement of the monetary sanctions, including restitution, only if the defendant alleges and establishes to the satisfaction of the court the defendant’s inability to pay the judgment in full at the time the judgment is entered. If the court finds that the defendant is unable to pay, the court may establish or allow an appropriate supervising authority to establish a payment schedule, taking into consideration the financial resources of the defendant and the burden that payment of restitution will impose, with due regard to the other obligations of the defendant. The supervising authority shall be authorized to modify any payment schedule established under this section.

“(b) As used in this subsection, supervising authority means any state or local agency that is authorized to supervise the defendant.”

That statute provides trial courts discretionary authority to delay the

enforcement of restitution in general. However, ORS 161.675(1) controls the

specific situation present here - whether the trial court may order the immediate

enforcement of restitution for a person sentenced to incarceration. That statute

provides that such immediate enforcement may be ordered only when the trial

court finds that the person has the means to pay. Here, where the court found

the opposite, its failure to delay enforcement was error.

237

PART TWO: ASSIGNMENTS OF ERROR INVOLVING SYSTEMIC CHALLENGES TO OREGON’S CAPITAL PUNISHMENT SCHEME AND OTHER ISSUES PREVIOUSLY ADDRESSED BY THIS COURT

NINETY-FIRST THROUGH ONE HUNDRED TWENTY-SECOND

ASSIGNMENT OF ERROR31

This combined section assigns error to 32 separate rulings of the trial

court.

With each ruling, the trial court erred by engaging in the process of

“death-qualifying” (that is, excluding prospective jurors who expressed

opposition to the death penalty) the jury in violation of defendant’s rights to due

process of law, an unbiased jury and a fair cross-section of the community

under Article I, section 11, and the Fourteenth Amendment.

The 32 rulings are as follows. The trial court erred by:

denying defendant’s demurrer/motion to dismiss (Ninety-Second Assignment of Error;

by denying defendant’s motions for separate guilt-phase and

sentencing-phase juries and to prevent death-qualification (Ninety-Third Assignment of error);

by excusing eight prospective jurors for cause during jury selection

(Ninety-Fourth through One Hundred First Assignments of Error);


Review, and Argument sections because they present essentially the same legal question. ORAP 5.45(6).

238

and by refusing to excuse 22 prospective jurors for cause during jury selection (One Hundred Second through One Hundred Twenty-Third Assignments of Error).


Defendant preserved these assignments of error by filing a written

demurrer, available in the trial court file, in which he argued that the trial court

could not “death-qualify” the jury. Defendant also preserved these assignments

of error by filing a Motion To Seat Two Juries, ER 40-41, A Motion to Preclude

Removal of Jurors Who Express Any Reservation In Regard to the Death

Penalty, ER 24-25, and a Motion to Prohibit Death Qualification of Jury or to

Control Voir Dire, ER 28-39. The state filed written responses to each motion,

attached at ER 111-112, 157-158, and 159-163. The parties and court discussed

the demurrer at a pretrial hearing. Tr. 743. The trial court entered written orders

denying each motion. ER 261, 262, and 264.

During jury selection, the trial court granted the state’s for-cause

challenges to eight jurors based upon their unwillingness to impose the death

penalty – Jurors Wedmore, Krinsky, Hart, Mehl, Ambo, Sinclair, Dunbar, and

Cole. Tr. 1640, 1788, 2225, 2594, 2705, 3190, 3483.

Also during jury selection, the trial court denied defendant’s motions to

exclude 22 jurors for cause – Jurors Osterman, Dean, Downing, Palmer, Fraser,

Relampagos, Thomas, Anderson, Schnee-Banks, Mainville, Bonney, Lacey,

Spencer, Adams, Carlson, Ferschweiler, Strand, Gawith, Wilson, Ranch, Webb,

239

and Kirchener. Tr. 1311, 1639, 1650, 1793, 1961, 2071, 2225, 2348, 2593,

2704, 2838, 2970, 3362, 3626. Defendant exhausted his peremptory challenges,

and Osterman, Palmer, Anderson, and Webb all ultimately served on the jury.

Tr. 3813. Ranch and Kirchener served as alternates over defendant’s objections.

Tr. 3821.


This court reviews a trial court’s decision to excuse a juror because of

actual bias for abuse of discretion. State v. Barone, 328 Or 68, 74, 969 P2d

1013 (1998), cert den, 528 US 1135, 120 S Ct 977, 145 L Ed 2d 928 (2000).

Combined Argument

Article I, section 11, of the Oregon Constitution guarantees a criminal

defendant the right to a jury composed of impartial and unbiased jurors. State v.

Amini, 331 Or 384, 392, 15 P3d 541 (2000); Mount v. Welsh, 118 Or 568, 247 P

815 (1926); Walker v. Griffin, 218 Or 514, 346 P2d 367 (1959). The Sixth and

Fourteenth Amendments to the United States Constitution similarly require that

a criminal defendant be afforded an impartial jury. Duncan v. Louisiana, 391

US 145, 88 S Ct 1444, 20 L Ed 2d 491 (1968).

240

Under the state and federal constitutions,

“the fact that [a potential juror] has preconceived ideas about a matter relevant to the case is not determinative. Rather, the test for whether a prospective juror may serve on a capital jury is whether his or her ideas or opinions would substantially impair his or her performance of the duties of a juror to decide the case fairly and impartially on the evidence presented in court.”

Barone, 328 Or at 74 (citing Montez, 309 Or at 574 (Montez I); Wainwright v.

Witt, 469 US 412, 424, 105 S Ct 844, 83 L Ed 2d 841, 851-52 (1985)). Error in

excluding a potential juror for cause in a capital case requires reversal. Gray v.

Mississippi, 481 US 648, 659-60, 107 S Ct 2045 (1987).

Here, the trial court erred when it dismissed each of the eight prospective

jurors for expressing their objection to the death penalty. The court also erred

when it denied defendant’s motions to dismiss twenty-two jurors for cause

because the juror’s “ideas or opinions would substantially impair his or her

performance of the duties of a juror to decide the case fairly and impartially on

the evidence presented in court.” Barone, 328 Or at 74.

The trial court erred in “death qualifying” the jury. In Lockhart v.

McCree, 476 US 162, 106 S Ct 1758, 90 L Ed 2d 137 (1986), the defendant was

tried and convicted by a “death-qualified” jury, i.e., one in which all potential

jurors who stated that they could not impose the death penalty under any

circumstances were dismissed for cause. 476 US at 165-66. McCree filed a

federal habeas corpus petition, arguing that “death qualification” violated his

241

right to an impartial jury selected from a representative cross-section of the

community. Id. at 167. To support his argument that the Court’s previous

approval of death qualification in Witherspoon v. Illinois, 391 US 510, 88 S Ct

1770, 20 L Ed 2d 776 (1968), should be overturned, McCree cited fifteen social

science studies that indicated that “death-qualified” juries were, among other

things, more prone to convict than “non-death-qualified” juries, and as a result,

the practice violated the impartiality and cross-section guarantees. McCree, 476

US at 167-173.

The Supreme Court rejected that argument. The Court first declared that

despite assuming “that the studies are both methodologically valid and adequate

to establish that ‘death qualification’ in fact produces juries somewhat more

‘conviction-prone’ than ‘non-death-qualified’ juries,” the Court held that

nonetheless, that the federal constitution did not prohibit courts from death

qualifying juries in capital cases. Id. at 173.

However, the Court went on to devote a substantial portion of its opinion

to discrediting the studies cited by McCree, dismissing nine of the 15 cited

studies as “marginally relevant,” because they addressed “generalized attitudes

and beliefs about the death penalty.” Id. at 169. Of the remaining six studies,

the Court noted that three had been before the Court in Witherspoon. Turning to

the final three studies cited by McCree, the Court declared that the fact that the

studies utilized random sampling techniques rather than actual capital case

242

jurors rendered them “fatally” and “fundamentally” flawed. McCree, 476

US at 171.

In 1990, the Capital Jury Project (CJP) was formed. Among its missions

was to generate “a comprehensive and detailed understanding of how capital

jurors actually make their life or death decisions.” William J. Bowers, The

Capital Jury Project: Rationale, Design, and Preview of Early Findings, 70 Ind

L J 1043, 1101 (1995). The CJP addressed the McCree Court’s concerns by

studying actual jurors from actual capital cases: 1,201 jurors from 354 cases.

William J. Bowers & Wanda D. Foglia, Still Singularly Agonizing: Law’s

Failure to Purge Arbitrariness from Capital Sentencing, 39 Crim L Bull 51, 51

(2003).

The CJP data nevertheless confirmed what the earlier studies had shown:

death qualification produces juries uncommonly willing to find guilt, and

uncommonly willing to impose the death penalty. Mike Allen et al., Impact of

Juror Attitudes About the Death Penalty on Juror Evaluations of Guilt and

Punishment: A Meta-Analysis, 22 Law & Hum Behav 715, 724-25 (1998)

(reviewing data and concluding death qualification results in juries more likely

to find guilt and vote for death); Bowers & Foglia, 39 Crim L Bull at 84-85

(death qualification “leave[s] an especially conviction-prone and punishment

prone group of individuals to decide capital cases”); Brooke M. Butler & Gary

Moran, The Role of Death Qualification in Venirepersons’ Evaluations of

243

Aggravating and Mitigating Circumstances in Capital Trials, 26 Law &

Hum Behav 175, 183 (2002) (“[D]efendants in capital trials are subjected to

juries that are oriented toward accepting aggravating circumstances and

rejecting mitigating circumstances.”). “Capital jurors hold disproportionately

punitive orientations toward crime and criminal justice, are more likely to be

conviction-prone, are more likely to hold racial stereotypes, and are more likely

to be pro-prosecution.” Benjamin Fleury-Steiner, Juror’s Stories of Death: How

America’s Death Penalty Invests In Inequality, 24-25 (2004).

As Justice Stevens has noted,

“Two aspects of the process of selecting juries in capital cases are troublesome. In case after case many days are spent conducting voir dire examinations in which prosecutors engage in prolonged questioning to determine whether the venire person has moral or religious scruples that would impair her ability to impose the death penalty. Preoccupation with that issue creates an atmosphere in which jurors are likely to assume that their primary task is to determine the penalty for a presumptively guilty defendant. More significantly, because the prosecutor can challenge jurors with qualms about the death penalty, the process creates a risk that a fair cross-section of the community will not be represented on the jury.”

Justice John Paul Stevens, Remarks at the Thurgood Marshall Awards Dinner

(Aug 6, 2005),

http://www.supremecourt.gov/publicinfo/speeches/viewspeeches.aspx?Filenam

e=sp_08-06-05.html (last accessed September 18, 2016).

244

Justice Stevens’s remarks highlight two fundamental problems with

death qualification. First, death qualification voir dire shrinks the jury pool.

That alters the composition of capital juries by excluding citizens with defense-

friendly dispositions in favor of those who are more prosecution-oriented. The

result is that death-qualified juries do not accurately reflect the myriad

backgrounds, experiences, and perspectives of a jury that is truly a cross-section

of the community, but instead are composed of only a certain select kind of

juror-the kind who favors the prosecution. Second, exposure to the death

qualification itself causes those who undergo it to become more likely to

convict and more likely to vote for death than they would have been without the

experience.

Of particular significance to the present case was the CJP finding that

over 70 percent of the jurors studied (again, actual capital jurors) felt that death

“was the only acceptable punishment” for murders committed by a defendant

with a prior murder conviction. Bowers & Foglia, 39 Crim L Bull at 62. Almost

60 percent agreed that death was the only acceptable punishment for “planned

or premeditated murder.” Id.

In addition to being more likely to impose the death penalty, death-

qualified jurors also manifest fundamental misunderstandings concerning

critical concepts they are asked to apply. For example, approximately half of

the jurors studied by the CJP wrongly believed that mitigating factors had to be

245

proved beyond a reasonable doubt and that the jury had to unanimously

agree that a particular fact was mitigating before it could affect punishment.

William J. Bowers et al., The Capital Sentencing Decision: Guided Discretion,

Reasoned Moral Judgment, or Legal Fiction, America’s Experiment with

Capital Punishment: Reflections on The Past, Present, and Future of the

Ultimate Penal Sanction, 438 (James R. Acker et al. eds., 2d ed. 2003).

Finally, the death-qualifying process itself has profound effects on those

who undergo it, not the least of which is rendering jurors more likely to believe

that the defendant is guilty, and that the only important task is to find the jurors

to do what is necessary (i.e., to sentence the defendant to death). Approximately

ten percent of the jurors interviewed by the CJP reported that the death

qualification questions made them think the defendant “must be” or “probably

was” guilty, compared to less than one percent who reported that the questions

made them think defendant “must not be” or “probably was not” guilty. Bowers

& Foglia, 39 Crim L Bull at 65.

The net effect of death qualification is to create juries that are prone to

conviction and much more likely to impose the death penalty upon conviction.

As such, the death qualification process employed in the present case deprived

defendant of his rights to an unbiased jury and to jury comprised of a fair cross-

section of the community guaranteed by the Oregon and federal constitutions,

and to due process of law under the federal constitution.

246

ONE HUNDRED TWENTY-THIRD ASSIGNMENT OF ERROR

The trial court erred when it denied defendant’s demurrer because ORS

163.095 and ORS 163.150 fail to adequately narrow the class of persons

eligible for the death penalty in violation of the Eighth Amendment.


Defendant preserved this issue. He filed a demurrer in which he raised

the arguments that he renews below. Demurrer/Motion to Dismiss at 25-31,

available in the trial court file. The state filed a written response titled State’s

Response to Defendant’s Several Motions Challenging the Constitutionality of

the Death Penalty/Demurrer, available in the trial court file.

The trial court held a pretrial hearing on November 21, 2013, at which

defendant argued that the Oregon death penalty scheme was unconstitutional

for the reasons set for the in the demurrer. Tr. 760. He addressed the statute’s

failure to narrow the class of people to whom the death penalty applies. Tr. 745.

The trial court issued a written order denying the demurrer. ER 255.

Standard of Review

This court reviews a trial court ruling denying a defendant’s challenge to

Oregon’s death penalty scheme by demurrer for error of law. See State v.

Moore, 324 Or 396, 429, 927 P2d 1073(1996) (applying that standard).

247

Argument

Defendant challenged the constitutionality of Oregon’s death penalty

scheme by demurrer. He asserted that the Oregon death penalty scheme violates

the Oregon and United States Constitutions in a number of ways. Defendant

renews all of those challenges here, relies on all arguments raised below, and

incorporates by reference all arguments made below, even if not expressly

discussed here. Any arguments not included here are expressly not waived.

The Eighth Amendment provides: “Excessive bail shall not be required,

nor excessive fines imposed, nor cruel and unusual punishments inflicted.” The

Cruel and Unusual Punishments Clause is applicable to the states through the

Due Process Clause of the Fourteenth Amendment. Powell v Texas, 392 US

514, 88 S Ct 2145, 20 L Ed 2d 1254 (1968); Malloy v. Hogan, 378 US 1, 6 n 6,

84 S Ct 1489, 12 L Ed 2d 653 (1964); Gideon v. Wainwright, 372 US 335, 342,

83 S Ct 792, 9 L Ed 2d 799 (1963); Robinson v California, 370 US 660, 82 S Ct

1417, 8 L Ed 2d 758 (1962). The fundamental principle embodied in the Clause

is that the state must not inflict punishment arbitrarily or based on irrational

considerations:

“In determining whether a punishment comports with human dignity, we are aided also by a second principle inherent in the Clause–that the State must not arbitrarily inflict a severe punishment. This principle derives from the notion that the State does not respect human dignity when, without reason, it inflicts upon some people a severe punishment that it does not inflict upon others. Indeed, the very words ‘cruel and unusual punishments’

248

imply condemnation of the arbitrary infliction of severe punishments.”

Furman, 408 US at 274 (Brennan, J., concurring). In addition, Article 6 of the

International Covenant on Civil and Political Rights (ICCPR), to which the

United States is a party (with reservations), prohibits the arbitrary imposition of

the death penalty.32

To comply with the requirements of the Eighth Amendment, a state’s

death penalty scheme must provide a rational way to distinguish those persons

who are subject to the death penalty from those who are not. Gregg, 428 US at

188-89. It must genuinely narrow the class of persons upon whom the sentence

of death may be imposed, and it must reasonably justify the imposition of the

more severe sentence on a defendant compared to others found guilty of the

32 The United States ratified the treaty on December 16, 1996, and it

“entered into force” on March 23 1976. The reservations of the United States include the following:

“That the United States reserves the right, subject to its Constitutional constraints, to impose capital punishment on any person (other than a pregnant woman) duly convicted under existing or future laws permitting the imposition of capital punishment, including such punishment for crimes committed by persons below eighteen years of age.”

Reservations of the United States to the ICCPR. The full text of the treaty and reservations is available at http://www.ohchr.org/en/professionalinterest/pages/ccpr.aspx (last accessed September 18, 2016).

249

same crime. Zant, 462 US at 877. The Oregon death penalty scheme fails on

both of those grounds.

In order to accomplish the goals of rationality and genuine narrowing,

states have used two legislative devices: they have provided discrete categories

of murder for which the death penalty may be imposed, and they have required

the jury to find one or more facts that make the defendant in the particular case

deserving of greater punishment (often called “aggravating factors”). Farrar,

309 Or at 184. No matter what device is used, the state must ensure that the

process is neutral and principled so as to guard against bias or caprice in the

sentencing decision. Tuilaepa v. California, 512 US 967, 973, 114 S Ct 2630,

129 L Ed 2d 750 (1994); see also ICCPR, Article 6.

Oregon purportedly narrows the class of death-eligible defendants at both

ends of the prosecution by both identifying discrete categories of murder for

which the death penalty may be imposed and by requiring a jury to find

aggravating factors. ORS 163.095; State v Wagner, 305 Or 115, 144, 752 P2d

1136 (1988), rev’d and rem’d sub nom Oregon v. Wagner, 492 US 914, 109 S

Ct 3235, 106 L Ed 2d 583 (1989) (Wagner I) (definition of crime narrows class

of persons eligible for the death penalty); cf. Lowenfield v. Phelps, 484 US 231,

108 S Ct 546, 98 L Ed 2d 568 (1988) (characterizing Texas death penalty

scheme as one that narrows the population eligible for the death penalty by

narrowing the categories of murder for which death is the punishment).

250

However, the legislature has designated so many classes of conduct as being

eligible for the death penalty that very few murders would not fit within at least

one of the categories. Aggravated Murder is defined in ORS 163.095. The 19

subsections of that statute set out at least that many different ways in which

“murder” may become “aggravated murder.” Far from narrowing the category

of murders that may be aggravated, ORS 163.095 allows virtually any murder

to be characterized as aggravated, and leaves a prosecutor with nearly unbridled

discretion. The statute fails to provide the narrowing function required by

Gregg.33

If all but a few murderers are eligible for the death penalty, then ORS

163.095 does not genuinely narrow the class of persons eligible for the death

penalty, and the legislature’s selection of categories does not justify the

imposition of death on one person convicted of murder as compared with

another. Thus, Oregon’s classification of murders by category does not provide

any meaningful narrowing within the meaning of the Eighth Amendment and

allows the arbitrary imposition of the death penalty in violation of Article 6 of

the ICCPR.

33 Defendant acknowledges that this court has rejected this argument

in Wagner I, 305 Or at 148-50.

251

ONE HUNDRED TWENTY-FOURTH ASSIGNMENT OF ERROR

The trial court erred in denying defendant’s demurrer, because Oregon’s

death penalty scheme permits arbitrary application of the punishment by

granting district attorneys unbridled discretion over who is charged with

aggravated murder and whether evidence is offered at the penalty phase.









for the reasons set for the in the demurrer. Tr. 760. The trial court issued a

written order denying the demurrer. ER 255.

Standard of Review

The constitutionality of Oregon’s death penalty scheme may be

challenged by demurrer. State v 328 Or 248, 250, 971 P2d 879, 882

(1999). This court reviews such challenges as a matter of law. Moore, 324 Or at

429-34 (applying that standard).

252

Argument







Article 6 of the ICCPR, to which the United States is a party (with

reservations), prohibits the arbitrary imposition of the death penalty. The Eighth

Amendment contains a similar prohibition. In holding the death penalty scheme

of Georgia unconstitutional in Furman v. Georgia, the plurality of the United

States Supreme Court was concerned that the statutes of the various states

permitted arbitrary imposition of the death penalty. Furman, 408 US at 276-77

(Brennan, J., concurring) (“The more significant function of the Clause,

therefore, is to protect against the danger of their arbitrary infliction.”)

So long as there are no statewide standards limiting or by which to

measure the exercise of discretion of prosecutors to pursue the death penalty in

some cases and not in others, the death penalty scheme fails to prevent arbitrary

and capricious application of the most severe of all punishments. Some method

must be provided by which to examine the prosecutor’s decision in a particular

case. As Justice Brennan explained, “The acceptability of a severe punishment

253

is measured, not by its availability, for it might become so offensive to

society as never to be inflicted, but by its use.” Furman, 408 US at 279

(Brennan, J., concurring).

This court has held that a coherent, systematic statewide policy is not

required. State v. McDonnell, 313 Or 478, 491-93, 837 P2d 941 (1992);

Cunningham, 320 Or at 65-67. However, a policy that requires only consistency

in the use of the death penalty at the local level necessarily does not protect the

citizens of Oregon from selection on an arbitrary basis of how state law is

applied.

The fact that there are no statewide standards or central reviewing body

to ensure that the death penalty is applied fairly and consistently means that the

state imposes its severest punishment arbitrarily, with no safeguards against the

overzealous or discriminatory use of the state’s most ominous power over its

citizens.

The prosecution of a particular defendant takes place in the particular

county where the crime occurred, but the law applied is state law. Therefore,

the state has the responsibility to ensure that the criteria for pursuing the death

penalty are reasonably consistent for all citizens within the state, without regard

to which county happens to have jurisdiction of the offense. Requiring

consistency of policy only at the local level fails to protect the citizens of

Oregon from violations of their rights under the Eighth and Fourteenth

254

Amendments to the United States Constitution and violates Article 6 of the

ICCPR. This court should reexamine the question and overrule its prior cases to

the extent that they provide for examination of prosecutorial decisions only for

consistency of application at the local level.

ONE HUNDRED TWENTY-FIFTH ASSIGNMENT OF ERROR

The trial court erred when it imposed a sentence of death even though the

indictment failed to allege the factors the rendered defendant eligible for the

death penalty under ORS 163.150.










written order denying the demurrer. ER 255. .

255

Standard of Review

Whether a fact is an element of a crime or a sentencing factor presents a

question of law. State v. Quinn, 290 Or 383, 623 P2d 630 (1981); Jones v.

United States, 526 US 227, 119 S Ct 1215, 143 L Ed 2d 311 (1999). This court

reviews whether an indictment alleged each material element of the charged

crimes for errors of law. See State v. Geosser, 203 Or 315, 318-20, 280 P2d 354

(1955) (comparing wording of indictment with statute and determining that the

indictment did not include a material element of the crime charged).

Argument







This court has held, “Obviously, the right of one accused of a crime to a

trial by jury, Or Const Art. I, § 11, extends to all the facts which constitute that

crime, including the mental element.” Quinn, 290 Or at 400. The jury-trial right

extends to any fact in the commission of the crime that determines the

maximum punishment to which the defendant is subject. See id. at 403-07.

256

The right to have the petit jury make factual findings implicates other

rights under the Oregon Constitution, including a defendant’s right to adequate

notice of the charges against him and the protections of the double jeopardy

clause. As explained below, Wedge and its progeny require the state to plead in

the accusatory instrument the facts that are related to the offense and increase

the punishment. The indictment in this case did not allege that defendant acted

deliberately in killing the victims. Accordingly, the indictment did not comply

with Article I, section 11, and the trial court lacked authority to impose a death

sentence.

In Quinn, this court noted that, historically, in order to impose the death

penalty, a jury had to find that the defendant deliberately killed the victim; in

other words, with premeditation. 290 Or at 401-02. After the death penalty was

abolished, the legislature amended the murder statute classify murder as “first-

degree” when committed intentionally. The Quinn court explained the rationale

for the change. 290 Or at 402-03.

However, when the death penalty was reinstituted by initiative in 1978,

resulting in the enactment of former ORS 163.116, Oregon once again required

deliberateness in order for a defendant convicted of murder to be eligible for the

death penalty. Id. at 403. To the Quinn court, the enactment of former ORS

163.116 created two separate crimes of murder: first-degree murder (requiring

intentional homicide) and first-degree capital murder (requiring intentional and

257

deliberate homicide). The fact that the death penalty statute was

characterized as an enhanced sentencing statute was of no import to the court.

Quinn, 290 Or at 403.

The problem was that former ORS 163.116 authorized the trial court, as

opposed to the jury, to determine whether the defendant had acted deliberately

in killing the victim. Id. at 403-04. The court distinguished prior cases in which

it upheld sentence enhancement statutes that authorized the trial court to make

the factual findings underlying the enhanced penalty, noting that the enhanced

penalty resulted from offender-based characteristics, not facts pertaining to the

crime the offender committed: “The difference between those statutes and ORS

163.116(2)(a), however, is found in the simple principle that [under Article I,

section 11,] the facts which constitute the crime are for the jury and those which

characterize the defendant are for the sentencing court.” Quinn, 290 Or at 405

(citing State v. Hoffman, 236 Or 98, 107, 385 P2d 741 (1963)).

In other words, a defendant’s jury trial right includes the right to have a

jury finding on each fact pertaining to the commission of the crime (as opposed

to a characteristic of the offender) that impacts the maximum penalty to which

the defendant is subject. See Quinn, 290 Or at 406; see also State v. Wedge, 293

Or 598, 607, 652 P2d 773 (1982).

The current death penalty scheme in Oregon is similar to the two-tiered

scheme invalidated by this court in Quinn. Statutory murder is defined as (1)

258

intentionally killing another person (intentional murder); (2) killing another

while committing or escaping from a felony (felony murder); or (3) killing

another through abuse, neglect, or maltreatment (murder by abuse). ORS

163.115. Murder is punishable by life in prison, with the possibility of parole

after 25 years. ORS 163.115(5)(a) and (b). Aggravated murder is defined by

ORS 163.095 as intentional murder that is committed under, or accompanied

by, any of a number of enumerated circumstances. The default sentence for

aggravated murder is life in prison without the possibility of parole. ORS

163.150(2)(a).

A person who commits aggravated murder may receive a death sentence

only if the jury unanimously finds the three aggravating factual findings

required under ORS 163.150(1)(b) and the jury finds no mitigating

circumstances to warrant life imprisonment, ORS 163.150(1)(b)(D). See ORS

163.150(1)(f); ORS 163.150(2)(a).

The statutory scheme effectively creates the additional crime of capital

aggravated murder, the elements of which are (1) aggravated murder under

ORS 163.095, and (2) the required findings listed in ORS 163.150(1)(b).

Moreover, two of the factual findings elevating aggravated murder to

aggravated murder punishable by death pertain to the commission of the crime

(as opposed to a characteristic of the offender), and thus implicate

Quinn/Wedge: that the defendant acted deliberately (as opposed to merely

259

intentionally), and that the conduct of the defendant was an unreasonable

response to provocation by the deceased. For the reasons that follow, defendant

maintains that those additional offense-related elements had to be pleaded in the

indictment.

I. Defendant’s argument in this case is distinguishable from this court’s holding in State v. Terry. Defendant recognizes that this court rejected the argument that

“deliberateness” must be pleaded in the indictment in Terry, 333 Or at 186-89.

However, several factors distinguish this court’s holding in Terry from the

argument defendant now makes on appeal.

First, the defendant in Terry argued that the failure to plead deliberate

killing in the indictment deprived the trial court of jurisdiction, a claim this

court easily dismissed. 333 Or at 184-86. Defendant does not frame this

argument in terms of whether the trial court had jurisdiction to try defendant for

aggravated murder.

Second, Terry‘s Quinn/Wedge argument that the state was required to

plead deliberateness was unpreserved in the trial court. Despite the lack of

preservation, this court nonetheless addressed the issue and found no error.

Terry, 333 Or at 187.

Defendant urges this court to reconsider that ruling. The court’s

reasoning in Terry was flawed. The court first noted that the legislature

260

amended the murder statutes after Quinn to include the new crime of

aggravated murder. Terry, 333 Or at 186-89. The court summarily concluded

that “[b]ecause defendant was charged under a different statutory scheme from

the one at issue in Quinn, that case does not support defendant’s argument.” Id.

That conclusion misconstrues the holding of Quinn and ignores that

decision’s directive to examine the effect of a statutory provision, rather than

the label (e.g., “enhanced penalty statute”) the legislature places on it. The fact

that the legislature chose to add an additional degree of murder beyond

intentional murder does not alter the analysis, especially when the legislature

chose to continue to distinguish those cases that deserve the death penalty by

requiring the same factual findings at issue in Quinn.

In support of its holding, the Terry court quoted its earlier decision in

Wagner I, 305 Or at 172: “To be guilty of aggravated murder one does not need

to act ‘deliberately.’” That is precisely defendant’s point. One need not act

deliberately to commit aggravated murder. But, one must act deliberately to

commit aggravated murder punishable by death.

The death penalty scheme has not changed in any meaningful way from

the scheme invalidated in Quinn. Under the old statutes, one need not act

deliberately to commit intentional murder, but one needed to act deliberately in

order to commit intentional murder punishable by death. In Quinn, this court

held that the additional fact finding elevating the possible punishment to death

261

in effect created a separate statute, with additional elements that were to be

pled and proven to a jury because they related to the commission of the crime.

In the present case, those same elements—deliberateness and an unreasonable

response to provocation by the victim—implicated defendant’s rights under

Article I, section 11.

The right to have factual findings pertaining to the commission of the

offense found by the jury derives from the right to jury trial. The right to jury

trial, in turn, implicates other rights under the Oregon Constitution, including a

defendant’s right to adequate notice of the charges against him and the

protections of double jeopardy clause. Those rights require that material

elements of a crime be pleaded in the accusatory instrument. In State v. Lark,

316 Or 317, 851 P2d 1114 (1993), this court described Wedge as holding that,

“because the indictment did not allege, and the jury did not find, that the

defendant had used the firearm personally, the defendant was unconstitutionally

deprived of a jury trial on that issue.” Lark, 316 Or at 327 (citing Wedge, 293

Or at 608-09); see also ORS 135.711; State v. Drake, 113 Or App 16, 19, 832

P2d 44 (1992).

262

II. This court’s holding in Wagner, and its subsequent reliance on that holding in Terry, should be overruled as inconsistent with precedent and a defendant’s right to a jury trial. Wagner I marked a departure from this court’s jurisprudence, which to

that point had held that the legislature could not omit from the indictment any

fact identified by the legislature concerning the criminal conduct that had a

bearing on the authorized punishment. In Wagner I, this court held that, in a

prosecution for aggravated murder, the indictment need not allege that a

defendant acted deliberately, the first question for the jury in the penalty phase.

305 Or at 172. In reaching that decision, this court did not cite or discuss any

Oregon constitutional provisions or any other decisions from this court.

The voters in 1908 adopted the amendment to the Oregon Constitution

that made grand jury indictment mandatory to commence a prosecution for an

offense punishable as a felony. Or Laws 1909, p 12. That provision made grand

jury indictment mandatory for “any crime and misdemeanor,” but permitted an

amendment to correct a defect as to “form.” That provision persists essentially

in its original form.

In its current form, the Oregon Constitution guarantees that “in all

criminal prosecutions,” the accused shall have the right to trial by jury and to

“demand the nature and cause of the accusation against him,” Or Const Art I, §

11, and that, with narrow exceptions inapplicable here, the accused shall be

charged with the commission of “any crime punishable as a felony only on

263

indictment by a grand jury.” Or Const Art VII (Amended), § 3. Those

provisions enshrine in our constitution two fundamental tenets: Any fact that

the legislature identifies that describes the commission of a felony and

authorizes criminal punishment must be alleged in the indictment and proved to

a jury beyond a reasonable doubt before the state can execute that modicum of

punishment. Because the sentence of death may not be imposed absent jury

findings that (1) defendant acted deliberately in killing the victims and (2) the

homicide was not a reasonable response to the victim’s provocation, the Oregon

Constitution requires that the grand jury make the findings and the indictment

contain them.

To the extent that this court has considered Wagner I to control the

meaning of Article I, section 11, or Article VII (Amended), section 5, this court

should disavow it as such now because the constitutional issues were neither

fairly presented nor considered by this court. Stranahan v. Fred Meyer, Inc.,

331 Or 38, 54, 11 P3d 228 (2000).

The defendant in Wagner I conceded that he had acted deliberately and

did not claim any deficiency in the indictment (for failure to allege

deliberateness) in the trial court or on direct appeal to this court. Rather, amici

curiae raised the issue for the first time in a single page of argument, as the last

of twelve constitutional and statutory challenges to the death penalty statute.

264

Brief of Amici American Civil Liberties Union of Oregon et al. (Amici Br)

at 60, Wagner I (S32635).

The analysis set out above should “affirmatively persuad[e this court] to

abandon that precedent.” State v. Ciancanelli, 339 Or 282, 290, 121 P3d 613

(2005). The people of Oregon adopted the 1908 amendment to Article VII,

section 18, to reclaim the people’s proper role in authorizing the nature and

extent of all felony prosecutions. Allowing imposition of the heightened

punishment to stand in this case divests the people of Oregon the power it

reclaimed in 1908 in this case and in future cases.

Because the indictment in the present case did not allege that defendant

acted deliberately in killing any victim, and did not allege that defendant acted

unreasonably in response to any provocation by any victim, the indictment

violated Article I, section 11, of the Oregon Constitution. As such, the trial

court was without authority to impose the death sentence for defendant’s

conduct, as he was not charged with aggravated murder punishable by the death

penalty.

ONE HUNDRED TWENTY-SIXTH ASSIGNMENT OF ERROR

The trial court erred when it ruled that the second question, ORS

163.150(1)(b)(B), does not violate Article I, sections 16, 20, and 21, of the

Oregon Constitution or the Sixth, Eighth, and Fourteenth Amendments to the

265

United States Constitution because it is unconstitutionally vague, violates a

defendant’s right to juror unanimity, and because it asks the jury to find a

probability beyond a reasonable doubt.











Standard of Review


challenged by demurrer. 328 Or 248 at 273; Moore, 324 Or at 429.

This court reviews such challenges for error as a matter of law. See Moore, 324

Or at 429-34 (applying that standard).

266

Argument







I. Introduction Oregon law authorizes the death penalty only if the jury convicts the

defendant of aggravated murder and the jury finds that the state has proven the

three predicate facts identified in ORS 163.150(1)(b). If the jury finds that the

state has proven those facts, then the “fourth question” asks the jury to decide

whether the defendant should receive a sentence of death. ORS

163.150(1)(b)(D). If the jury finds that the state failed to prove any of the first

three facts, or finds that defendant should not receive the death penalty, then the

maximum sentence that can be imposed is life without the possibility of parole.

ORS 163.150(2)(a).

ORS 163.150(2)(b) sets out the three predicate facts (often referred to as

the “three questions”) and the final question, which asks whether the defendant

should be sentenced to death. Another subsection of ORS 163.150 provides that

the first three facts must be found beyond a reasonable doubt. However, the

267

“second question” asks the jury whether there is a “probability” that the

defendant will commit criminal acts of violence in the future that would

“constitute a continuing threat to society.” ORS 163.150(1)(b)(B). That

provision violates Article I, sections 16, 20, and 21, of the Oregon Constitution,

and the Eighth and Fourteenth Amendments to the United States Constitution.

II. ORS 163.150(1)(b)(B) violates the Sixth Amendment and the Due Process Clause of the Fourteenth Amendment, because it provides for a finding based on proof less than beyond a reasonable doubt on a fact necessary to impose a penalty greater than that authorized by the conviction itself. The United States Supreme Court has held that any fact, other than the

fact of a prior conviction, that increases the penalty for a crime beyond the

statutory maximum is an element of a greater crime that must be proved to a

jury beyond a reasonable doubt. Blakely v. Washington, 542 US 296, 303-04,

124 S Ct 2531, 159 L Ed 2d 403 (2004); Apprendi v. New Jersey, 530 US 466,

476, 120 S Ct 2348, 147 L Ed 2d 435 (2000). Under Ring, the rule in Blakely

also applies to the factors that the jury considers in the penalty phase before a

defendant may be sentenced to death. And as observed in Ring and Apprendi,

the principles apply without regard to how the legislature or lower court

chooses to label the predicate facts. Ring, 536 US at 604; Apprendi, 530 US at

494.

In the present case, the trial court relied on at least one fact not found by

the jury beyond a reasonable doubt to impose the death penalty: that defendant

268

probably will commit criminal acts of violence in the future. On its face,

ORS 163.150(1)(b)(B), unconstitutionally provides for the additional factor to

be found on proof less than beyond a reasonable doubt. Even assuming that a

person’s future conduct can be proved beyond a reasonable doubt, the court’s

jury instruction on the issue lowered the standard of proof. The sentence of

death was therefore unlawful.

ORS 163.150(1)(d) provides that the three additional facts necessary to

authorize a sentence of death for aggravated murder must be found beyond a

reasonable doubt. However, the second question under ORS 163.150(1)(b) asks

whether “there is a probability” that defendant will commit unspecified criminal

acts of violence at some unspecified time in the future. As a matter of statutory

law, the wording of ORS 163.150(1)(b) directly conflicts with the wording of

ORS 163.150(1)(d). As a matter of constitutional law, ORS 163.150(1)(d) is

facially sound and required; ORS 163.150(1)(b) is not. Accordingly, the term

“probability” in ORS 163.150(1)(b) must mean “so highly probable as to

amount to beyond a reasonable doubt,” or the subsection fails under the Due

Process Clause of the Fourteenth Amendment as a basis to authorize an increase

in punishment from life without parole to death.

The second question asks if it is probable that defendant “would commit

criminal acts of violence that would constitute a continuing threat to society.” It

269

does not ask if it is beyond a reasonable doubt that defendant will commit

violent acts and be a continuing threat. The difference is not semantic.

The court’s explanatory instruction insured that the jury invoked the

probability standard when answering the second question. That is, even if the

statute could be construed to require the jury to make a finding on the second

question beyond a reasonable doubt (though it cannot), the court specifically

instructed the jury that “a probability” means “more likely than not.” Again, the

probability standard watered down the “beyond a reasonable doubt” standard

below the constitutional minimum.

The legislature can no more allow punishment of death based on a

finding that a person probably will commit some crime in the future than it can

allow a conviction based on a jury finding that it was convinced beyond a

reasonable doubt that a person probably committed a crime.

III. ORS 163.150 is unconstitutionally vague in violation of Article I, sections 20 and 21, of the Oregon Constitution, and the Due Process Clause of the Fourteenth Amendment to the United States Constitution.

In addition, the statute is unconstitutionally vague in violation of Article

I, sections 20 and 21, of the Oregon Constitution, and the Due Process Clause

of the Fourteenth Amendment to the United States Constitution, because (1) it

is not “sufficiently explicit to inform those who are subject to it of what conduct

on their part will render them liable to its penalties”; (2) it fails to provide a

270

“‘reasonable degree of certainty’ about what conduct falls within the

statute’s prohibition”; and (3) it fails to prevent a judge, jury, or other law

enforcer from “exercis[ing] uncontrolled discretion in punishing defendants.”

State v. Chakerian, 325 Or 370, 382, 938 P2d 756 (1997) (quoting State v.

Graves, 299 Or 189, 195, 700 P2d 244 (1985), and State v. Plowman, 314 Or

157, 164, 838 P2d 558 (1992), cert den, 508 US 974 (1993)).

Moreover, a death penalty scheme must provide a rational way to

distinguish those persons who are subject to the death penalty from those who

are not in order to survive a vagueness challenge. See Gregg v. Georgia, 428

US 153, 195 n 46, 96 S Ct 2909, 49 L Ed 2d 859 (1976); Furman v. Georgia,

408 US 238, 240, 92 S Ct 2726, 33 L Ed 2d 346 (1972) (Douglas, J.,

concurring); 408 US at 306 (Stewart, J., concurring); 408 US at 310 (White, J.,

concurring). The degree of probability that ORS 163.150(1)(b)(B) requires is, at

best, “more likely than not,” and, at worst, “any likelihood the jury chooses

between zero and 100 percent.” Therefore, ORS 163.150(1)(b)(B) does not

genuinely provide any “principled way to distinguish this case, in which the

death penalty [is] imposed, from the many cases in which it [is] not.” Godfrey v

Georgia, 446 US 420, 433, 100 S Ct 1759, 64 L Ed 2d 398 (1980)(plurality);

see also Maynard v. Cartwright, 486 US 356, 108 S Ct 1853, 100 L Ed 2d 372

(1988) (applying the same test).

271

IV. ORS 163.150(1)(b) is unconstitutional on its face as an aggravating circumstance. Even if ORS 163.150(1)(b) complies with the Due Process Clause, it

violates the Eighth Amendment because it fails to “genuinely narrow the class

of persons eligible for the death penalty and * * * reasonably justify the

imposition of a more severe sentence on the defendant compared to others

found guilty of murder.” Zant v. Stephens, 462 US 862, 877, 103 S Ct 2733, 77

L Ed 2d 235 (1983) (citing Furman, 408 US 238) (emphasis added). By the

inclusion of the term “a probability” as part of the predicate for deciding

whether to impose a penalty of death, the Oregon statute violates the Eighth and

Fourteenth Amendments to the United States Constitution by failing to provide

a rational way to distinguish those persons who are subject to the death penalty

from those who are not. Gregg, 428 US at 188-89.

On its face, a determination that “there is a probability” of future

violence does not distinguish among persons generally or among persons who

have committed murder. If “a probability” means “the chance that a given event

will occur,” then one percent likelihood is “a probability” just as much as 100

percent likelihood is. Therefore, the jury could say “yes” to the question, even if

the jury believed that the defendant may commit future acts of violence. That

draws little to no distinction among people convicted of murder, let alone a

rational one.

272

Even if “there is a probability” means something more than one

percent, the statute on its face leaves to each juror to decide how likely and how

violent the anticipated future behavior must be for that juror to vote “yes” in a

particular case. The statute thereby virtually authorizes death to be imposed in

all capital cases and permits different and arbitrary standards to be imposed on

persons convicted of the same crime.

The second question, moreover, is not merely a finding of the fact of a

prior conviction, such as, “Does defendant have prior convictions for violent

criminal acts?” Rather, it asks the jury to look into the distant future and predict

whether, at any time in the defendant’s life, he might commit criminal acts of

violence. The court permits all manner of evidence about a defendant’s life that

it considers relevant to such a prognostication, not just evidence of criminal acts

of violence.

American jurisprudence prohibits punishing someone based on a belief—

no matter how strongly held—that the person will do something in the future.

The United States Supreme Court has expressly held that the Eighth

Amendment does not permit a state to punish a person based solely on his

status, propensity, or personality traits. Robinson v. California, 370 US 660, 82

S Ct 1417, 8 L Ed 2d 758 (1962) (making criminal and punishing a person’s

status as drug addict violates the Eighth Amendment); Powell v. Texas, 392 US

514, 533, 88 S Ct 145, 20 L Ed 2d 1254 (1968) (public intoxication as a

273

criminal offense does not violate the Constitution, because the accused is

punished for engaging in the behavior of being drunk in public on a particular

occasion, not for being a chronic alcoholic); see also, Powell, 393 US at 543

(Black, J., concurring). If the state cannot punish a citizen based on a mere

propensity to commit an offense, then it cannot punish one defendant more

severely than another based on a mere propensity. Even if the state could rely

on propensity to punish one offender more severely than another who

committed the same crime, it cannot impose death as the penalty on a prediction

about the commission of violent acts in the future that “can only be the subject

of sheer speculation.” Godfrey, 446 US at 429.

ONE HUNDRED TWENTY-SEVENTH ASSIGNMENT OF ERROR

The trial court erred in denying defendant’s demurrer on all counts

because ORS 163.150(1)(b)(D), as modified by the instruction required by ORS

163.150(1)(c)(B), is unconstitutional on its face under the Eighth and

Fourteenth Amendments to the United States Constitution and Article I,

sections 16, 20, and 21, of the Oregon Constitution.





274

Response to Defendant’s Several Motions Challenging the Constitutionality

of the Death Penalty/Demurrer, available in the trial court file.





Standard of Review


challenged by demurrer. 328 Or 248 at 273; Moore, 324 Or at 429.

This court reviews such challenges for error as a matter of law. See Moore, 324

Or at 429-34 (applying that standard).

Argument

I. Introduction The United States Supreme Court has held that under the Eighth

Amendment, a state cannot preclude a capital jury from considering “any

relevant mitigating evidence” that the defendant proffers in support of a

sentence less than death. Eddings v Oklahoma, 455 US 104, 114, 102 S Ct 869,

71 L Ed 2d 1 (1982); Skipper v S Carolina, 476 US 1, 106 S Ct 1669, 90 L Ed

2d 1 (1986). A capital defendant must be treated as a “‘uniquely individual

human bein[g].’” Booth v. Maryland, 482 US 496, 504, 107 S Ct 2529, 2534,

275

96 L Ed 2d 440 (1987) (quoting Woodson v. North Carolina, 428 US 280,

304, 96 S Ct 2978, 2991, 49 L Ed 2d 944 (1976)).

This court has similarly concluded that the Eighth Amendment requires a

jury in a capital case to give meaningful effect to mitigating evidence that is

relevant to matters outside or beyond the first three questions posed in ORS

163.150(1)(b). State v. Wagner, 309 Or 5, 13, 786 P2d 93, cert den, 498 US 879

(1990) (Wagner II) (citing Penry I, 492 US 302). Specifically, this court held:

(1) that “the federal constitution requires admission of all mitigating evidence”;

(2) that “the federal constitution requires a mechanism for meaningful

consideration of all mitigating evidence, including evidence beyond the scope

of the statutory questions”; (3) “the trial court is obliged to instruct the

sentencing jury on all necessary matters of law”; and (4) “defendant is entitled

to an instruction that, notwithstanding an affirmative answer to the statutory

questions, the jury may conclude that mitigating evidence justifies imposition of

a life sentence.” Wagner II, 309 Or at 15-16 (emphasis added).

In 1989, following Penry I, the legislature added a fourth question that

the penalty phase jury must decide. Former ORS 163.150(1)(b)(D) (1989). In

Wagner II, after commenting that the legislature’s formulation lacked

grammatical clarity, this court held that the lower courts should instruct a jury

with a re-formulated version of the question. 309 Or at 19.

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In Booth and South Carolina v. Gathers, 490 US 805, 109 S Ct 2207,

104 L Ed 2d 876 (1989), the United States Supreme Court held that the Eighth

Amendment prohibited the state from introducing victim impact statements,

reasoning that such evidence presented “factors about which the defendant was

unaware, and that were irrelevant to the decision to kill,” and had nothing to do

with the “blameworthiness of a particular defendant.” Booth, 482 US at 504-

505. Evidence of the victim’s character might distract the jury from the

pertinent question of the defendant’s character and blameworthiness in the

current crime. Id.

However, in 1991, the Supreme Court reversed itself, holding that victim

impact statements were admissible during the penalty phase of a capital trial.

Payne, 501 US at 825. The legislature responded to those developments by

amending ORS 163.150 to allow not just victim impact evidence, but any

aggravating evidence the trial court deems “relevant” to the ultimate question of

whether the defendant deserves the death penalty. Those amendments permitted

the admission of evidence far beyond the victim impact evidence allowed in

Payne, effectively removed the requirement of meaningful consideration of

mitigation altogether, and placed meaningful review of the jury’s decision

beyond the reach of the judicial branch.

ORS 163.150(1)(a) authorizes the trial court to admit any aggravating

evidence “relevant” to the fourth question without imposing any requirement

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that the evidence satisfy any other rule of evidence; without requiring the

state to identify what the “aggravating fact” is that the aggravating evidence is

offered to prove; without providing any guidance to the jury as to how it is to

assess the aggravating evidence—whether it is in the form of “Victim Impact

Statements” or otherwise; and without requiring the state to prove any

corresponding fact beyond a reasonable doubt or by any other standard of proof.

See ORS 163.150(1)(d) (requiring the jury to find the facts articulated under

ORS 163.150(1)(b)(A) to (C) beyond a reasonable doubt, but not including

ORS 163.150(1)(b)(D)—whether the defendant should receive the death

sentence). For those reasons, the statute under which defendant was sentenced

to death is unconstitutional.

II. ORS 163.150 permits the admission of evidence far beyond the victim impact evidence approved in Payne. The Oregon legislature has expanded the evidence admissible on the

ultimate question whether a defendant should be sentenced to death to include

not only the kind of victim impact evidence contemplated by the United States

Supreme Court in Payne, but also evidence

“as to any matter that the court deems relevant to sentence including, but not limited to, victim impact evidence relating to the personal characteristics of the victim or the impact of the crime on the victim’s family and any aggravating or mitigating evidence relevant to the issue in paragraph (b)(D) of this subsection.”

ORS 163.150(1)(a).

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That is, ORS 163.150 does not merely permit evidence of the effects

of the death on the family members and others as counterweight to the

defendant’s presentation of mitigation. Rather, it also permits the state to

present any aggravating evidence that the court deems “relevant” to the

question whether the defendant should be put to death, even if it is not relevant

to any corresponding factual issue on which the state has the burden of proof.

Evidence is relevant if it has “any tendency to make the existence of any

fact that is of consequence to the determination of the action more probable or

less probable than it would be without the evidence.” OEC 401; State v. Gibson,

338 Or 560, 569, 113 P3d 423, 428, cert den, 546 US 1044 (2005). Because the

“fact that is of consequence” under ORS 163.150(1)(b)(D) is “[w]hether the

defendant should receive a death sentence,” the universe of possible relevant

evidence of aggravation is large indeed.

The statute authorizes the state to counter a defendant’s evidence of

mitigation by introducing any additional aggravating evidence beyond the

evidence of the “emotional impact of the crimes on the victim’s family” that the

Supreme Court held admissible in Payne; beyond “a sense of the unique human

being whose life the defendant has taken,” Gathers, 490 US at 817 (

J., dissenting); and far beyond the “glimpse of the life” that a defendant “chose

to extinguish,” Mills v. Maryland, 486 US 367, 397, 108 S Ct 1860, 1876, 100

L Ed 2d 384 (1988) (Rehnquist, J., dissenting). Moreover, it authorizes

279

aggravating evidence that is different in character from the “amount of harm

one causes” by his crime that formed the basis of Justice Scalia’s objection to

the rule articulated in Booth and repudiated in Payne. Booth, 482 US at 517

(Scalia, J., dissenting).

The Oregon statute does not limit aggravating evidence to evidence of

the effects of the victim’s death on third parties. Rather, it permits the state to

present virtually anything, as the court did in this case. The only limitation that

the statue imposes is that “neither the state nor the defendant shall be allowed to

introduce repetitive evidence that has previously been offered and received

during the trial on the issue of guilt.” ORS 163.150(1)(a).

III. OEC 404(3), which governs the admission of prior bad acts, does not contain the balancing test identified by the Court in Payne as the constitutional safeguard for aggravating evidence presented on the fourth question. In Payne, the United States Supreme Court based its ruling in part on its

view that state prosecutors would be prevented from exceeding reasonable

bounds in their presentation of victim impact evidence because trial courts will

exclude evidence that is “so unduly prejudicial that it renders the trial

fundamentally unfair.” 501 US at 825. However, OEC 404(4) purports to

eliminate the OEC 403 balancing test with regard to other bad act evidence

admitted under OEC 404(3), including the aggravating evidence admitted in the

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present case. See State v. Moore/Coen, 349 Or 371, 387-92, 245 P3d 101

(2010) (analyzing OEC 404(4)).

OEC 404(4) provides that evidence of other crimes by the defendant is

admissible if relevant except as otherwise provided by, among other things, the

United States Constitution. Oregon courts, including this court, have

consistently interpreted OEC 404(4) to prohibit OEC 403 balancing regardless

of the prejudicial effect of other acts evidence; no court has identified a case in

which balancing was required. Accordingly, the safeguard identified by the

Supreme Court in Payne does not exist under Oregon law, and the aggravating

evidence permitted under ORS 163.150 would violate the federal constitution.

IV. The plain wording of ORS 163.150 violates the Eighth and Fourteenth Amendments of the United States Constitution by permitting a capital jury to disregard mitigating evidence altogether. The fourth question, ORS 163.150(1)(b)(D), provides simply that the jury

must decide “[w]hether the defendant should receive a death sentence.”

However, other sections of that statute modify the meaning of that question by

specifying what evidence may be presented to the jury on the issue and the

instructions to be given the jury regarding how to decide it. Those sections,

taken separately in the light of the statutory context or taken together, render the

statutory scheme unconstitutional.

ORS 163.150(1)(c) dictates how the jury is to be instructed with respect

to mitigation. Even if the legislature intended for those provisions to conform to

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the requirements of Penry I, the manner it chose to effectuate that

requirement fails to guide the jury’s discretion. It also fails to provide a vehicle

by which the jury must give full effect to mitigating circumstances.

Within the context of answering all four questions, the jury is told merely

“to consider * * * any mitigating circumstances offered in evidence.” ORS

163.150(1)(c)(A). That is precisely what the Supreme Court said was

insufficient: “Nor does [Penry I] stand for the proposition that it is

constitutionally sufficient to inform the jury that it may ‘consider’ mitigating

circumstances in deciding the appropriate sentence.” Penry v. Johnson, 532 US

782, 797, 121 S Ct 1910, 150 L Ed 2d 9 (2001) (Penry II). The Oregon statute

does nothing to guide the jury in how to evaluate the mitigating circumstances.

In addition, the statute contradicts itself and provides that the jury need

not give effect to any such evidence. ORS 163.150(1)(c)(B) provides that the

jury is to be instructed that, when considering the fourth question, it can base its

answer on either “aggravating evidence and any mitigating evidence concerning

any aspect of the defendant’s character or background, or any circumstances of

the offense and any victim impact evidence.”

By the disjunctive wording of the statute, combined with the comma

separating the two clauses containing the various types of evidence, the jury is

told to consider one group of facts that includes mitigation, or the other group

of facts that does not. Thus, the jury is effectively told that it may disregard

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mitigating evidence altogether when deciding the ultimate question:

whether defendant should die. That approach violates the United States

Constitution under Penry I and is precisely the approach overturned by the

Court in Penry II.

Therefore, the instruction provides no guidance to the jury about what to

do with the mitigating facts and affirmatively instructs the jury that it need not

give any effect to them at all. In both ways, the statute violates the Eighth and

Fourteenth Amendments of the United States Constitution under Penry II.

Defendant was therefore unlawfully sentenced to death. This court should

vacate the sentence of death and remand for resentencing.

V. ORS 163.150 is unconstitutional under the Sixth and Fourteenth Amendments, because it allows the imposition of a death sentence based on evidence without a jury finding of any fact beyond a reasonable doubt. The “any aggravating evidence” provision related to the fourth question

allows the state to present open-ended evidence of aggravating circumstances in

favor of putting a defendant to death without imposing any burden or standard

of proof. The presumptive sentence in an aggravated murder case is life without

the possibility of parole. The defendant may receive a sentence of death only if

the jury makes a “yes” finding on all four questions.

The original fourth question was intended to provide a mechanism

whereby the jury could give effect to mitigating evidence. However, once the

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legislature authorized the state to present additional aggravating evidence on

that question, it converted the matter into yet another aggravating factor.

Therefore, “any aggravating evidence” offered on the fourth question is

evidence presented to authorize greater punishment. Accordingly, the statute is

unconstitutional, because it does not require that the jury make any finding

regarding that aggravating evidence beyond a reasonable doubt, as required by

the Sixth Amendment to the United States Constitution.

The United States Supreme Court has held that any fact, other than the

fact of a prior conviction, that increases the penalty for a crime beyond the

statutory maximum provided based on the conviction itself, is an element of a

greater crime that must be proved to a jury beyond a reasonable doubt. Blakely,

542 US at 303-04; Apprendi, 530 US at 476. Under Ring, 536 US at 604, the

rule in Blakely also applies to the selection factors that the jury considers in the

penalty phase to find that the defendant may be sentenced to death.

If a fact sought to be proved by the evidence is one that increases the

possible punishment of the defendant, then it must be a fact found by a jury

beyond a reasonable doubt. “If a State makes an increase in a defendant’s

authorized punishment contingent on the finding of a fact, that fact – no matter

how the State labels it – must be found by a jury beyond a reasonable doubt.”

Ring, 536 US at 602. The Court explained: “The relevant inquiry is one not of

form, but of effect.” Ring, 536 US at 604 (quoting Apprendi, 530 US at 494).

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However, ORS 163.150(1)(d) requires the state to prove beyond a

reasonable doubt only the first three questions (i.e., ORS 163.150(1)(b)(A) –

(C)). By omission, the jury is instructed that it need not be convinced beyond a

reasonable doubt that a defendant should receive the death sentence before

answering “yes” to the fourth question. In fact, the jury is provided with no

guidance whatsoever regarding the burden of proof borne by the state (or any

party, for that matter) on the facts underlying the fourth question. By not

requiring a finding that increases a defendant’s punishment beyond the statutory

maximum to be made beyond a reasonable doubt, ORS 163.150 violates

defendant’s constitutional rights under Apprendi, Blakely, and Ring. This court

should reverse, vacate the death sentence, and remand for resentencing.

VI. ORS 163.150 allows the imposition of a non-unanimous death sentence in violation of Article I, section 11, of the Oregon Constitution and the Sixth Amendment to the United States Constitution.34 In State v. Boots, 308 Or 371, 780 P2d 725 (1989), this court held that

Article I, section 11, of the Oregon Constitution requires a unanimous verdict

concerning the factual circumstance that raised simple murder to aggravated

murder. Jurors in that case were instructed that they could find the defendant

guilty of aggravated murder as long as each juror found that the state had

34 Defendant acknowledges that this court rejected this argument in

Brumwell, 350 Or at 112.

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proved one or the other of two aggravating factors. This court held that “the

instruction relieves the jury from seriously confronting the question whether

they agree that any factual requirement of aggravated murder has been proved

beyond a reasonable doubt, so long as each juror is willing to pick one theory or

another.” Boots, 308 Or at 375.

When the fourth question was simply whether a defendant had some

redeeming quality that justified sparing his life, and the state’s evidence was

limited to rebutting the accuracy or truthfulness of defendant’s mitigating

evidence—as was contemplated in Wagner II—the legislature could properly

relieve the state from any burden of proof, and no unanimity issue would arise.

However, now that the statute authorizes the state to present evidence of

additional aggravation—for example, that a defendant previously committed a

particularly heinous crime, or that the harm was greater than that captured by

the underlying statute because of the impact on the victim’s family—Boots

requires that the jury consider each of the new ad hoc aggravating facts

separately, and the standard of proof and requirement of unanimity apply.

Because the statute identifies no standard of proof, and requires no unanimity as

to even one additional aggravating factor, it violates both Article I, section 11,

of the Oregon Constitution and the Sixth Amendment to the United States

Constitution.

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VII. Adding non-specific aggravating factors to the fourth question precludes meaningful appellate review of the jury’s ultimate decision. In order for a death penalty scheme to satisfy the Eighth Amendment, it

must provide for prompt, meaningful judicial review. See Jurek v. Texas, 428

US 262, 276, 96 S Ct 2950, 49 L Ed 2d 929 (1976) (“By providing prompt

judicial review of the jury’s decision in a court with statewide jurisdiction,

Texas has provided a means to promote the even-handed, rational and

consistent imposition of death sentences under law”); Parker v. Dugger, 498

US 308, 321, 111 S Ct 731, 112 L Ed 2d 812 (1991) (Court has emphasized

repeatedly the crucial role of meaningful appellate review in ensuring that the

death penalty is not imposed arbitrarily or irrationally); McKenzie v. Risley, 842

F2d 1525, 1538 (9th Cir), cert den, 488 US 901 (1988) (Eighth Amendment

requires that a court of statewide jurisdiction review the sentence to ensure that

it was not imposed in an arbitrary manner).

Under Oregon law, before the death penalty may be imposed, the jury

must determine “whether the defendant should receive a death sentence.” ORS

163.150(1)(b)(D). This court cannot conduct a meaningful review of the jury’s

decision on that issue. First, the fourth question is not subject to any burden of

proof. Wagner II, 309 Or at 135-42. Second, the jury decision on that issue is

purely discretionary; no standards are provided to guide the exercise of

discretion. Wagner II, 309 Or at 18.

287

Third, Amended Article VII, section 3, of the Oregon Constitution

prohibits review of any fact found by a jury, “unless the court can affirmatively

say there is no evidence to support the verdict.” Fourth, the instruction given the

jury in ORS 163.150(1)(c)(B) does not direct the jury to consider mitigating

evidence as a distinct basis for whether to spare the defendant’s life. It

combines consideration of mitigating facts with aggravating facts and victim

impact evidence in such a way that the reviewing court cannot determine

whether the jury actually considered mitigating evidence at all.

The statute deprives a defendant of obtaining any meaningful review as

to whether the jury’s decision was based on improper considerations or was

arbitrary and capriciously reached. Without meaningful judicial review of the

jury’s findings on that question, the death penalty scheme violates the Eighth

Amendment as well as the Due Process Clause of the Fourteenth Amendment.

See State v. Cunningham, 320 Or 47, 73-81, 880 P2d 431 (1994) (Fadely, J.,

dissenting); cf. Honda Motor Co. v. Oberg, 512 US 415, 114 S Ct 2331, 129 L

Ed 2d 336 (1994) (review solely to determine whether there is evidence to

support the verdict is inadequate).

Defendant acknowledges that this court has held that it reviews a jury’s

decision on the fourth question for whether that decision could be made by any

“rational” juror. It rejected the argument that Oberg compels review to

determine whether the result was excessive. “[U]nlike in the context of punitive

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damages, the United States Supreme Court never has held that the Due

Process Clause requires ‘excessiveness’ review in death-penalty cases.” Moore,

324 Or at 434.

However, in Furman, 408 US 238, the Supreme Court held that more

than merely inquiring whether sentencing a person to death is “rational” is

required. Furman requires that the decision be made on a “meaningful basis for

distinguishing the few cases in which [the penalty] is imposed from the many

cases in which it is not.” Id. at 313 (White, J., concurring).

The fundamental nature of the question asked of the jury in the fourth

question originally was whether any of the evidence demonstrates that the life

of a particular human being has any redeeming value that should stay the hand

of the state in extinguishing that life. To review the jury’s decision on that

question only for whether it is “rational” is virtually no review at all.

ONE HUNDRED TWENTY-EIGHTH ASSIGNMENT OF ERROR

The trial court erred when it denied defendant’s Motion to Reapportion

Sentencing Closing Arguments.


Defendant filed a written Motion to Direct Order of Presentation of

Evidence and Argument and to Limit Evidence in Sentencing Phase in which he

moved the court, inter alia, for an order: “At the conclusion of the sentencing

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phase to allow defendant to make the first and last closing arguments or in

the alternative to allow defendant surrebuttal argument.” ER 51-52. The state

filed a written response to that motion. ER 113-114.. The trial court entered a

written order denying that motion. ER 263.

Standard of Review

Whether the state or defendant is entitled to a rebuttal argument on the

fourth question is reviewed as a matter of law. State v. McNeely, 330 Or 457,

466-67, 8 P3d 202, cert den, 531 US 1055 (2000) (applying that standard of

review in determining whether the state had the statutory right to a rebuttal

argument.).

Argument

The state is traditionally entitled to the last argument in criminal cases,

because it has the burden of proof. State v. Stevens, 311 Or 119, 147-48, 806

P2d 92 (1991). At the penalty phase, the state bears the burden of proof beyond

a reasonable doubt on the first, second, and third questions relevant to the

determination of the punishment. ORS 163.150. But neither party bears the

burden of proof on the “fourth question” under ORS 163.150(1)(b)(D), to-wit,

“Whether the defendant should receive a death sentence.” ORS 163.150(1)(d);

Wagner II, 309 Or at 18 (so noting with regard to prior iteration of the “fourth

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question”). Accordingly, the state is not entitled to rebuttal argument on that

question.

Defendant acknowledges that this court has ruled to the contrary on

statutory grounds. McNeely, 330 Or 466-67 (the text of ORS 163.150(1)(a) and

ORCP 58(B)(5) unambiguously permit the state to argue for a sentence of death

in rebuttal). Whether or not Oregon statutes permit it, however, this court

cannot deny the advantage accruing to the party who has the “last word” with

the jury. See Mitchell Caldwell, Primacy, Recency, Ethos & Pathos: Integrating

Principles of Communication Into the Direct Examination, 76 Notre Dame L

Rev 423 (2001); Robert S. Wyer, Jr. & Thomas K. Srull, The Processing of

Social Stimulus Information: A Conceptual Integration, in Person Memory: The

Cognitive Basis of Social Perception, 38 J Personality & Social Psychology

227, 254 (1980) (“The more recently a piece of information has been received

and processed, the more likely it is to be recalled and used again.”). It is

fundamentally unfair to deny a capital defendant attempting to convince a jury

to spare his life through evidence and arguments in mitigation of the “last

word” advantage. Skipper, 476 US at 5 n 1; Herring v. New York, 422 US 853,

859, 95 S Ct 2550, 45 L Ed 2d 593 (1975); see also, John B. Mitchell, Why

Should the Prosecutor Get the Last Word?, 27 Am J Crim L 139, 216 (2000).

Denying defendant final argument creates the risk of arbitrary application of the

death penalty. For those reasons, allowing the state an “extra” argument on the

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fourth question violates the Due Process Clause of the Fourteenth

Amendment and the right against cruel and unusual punishment guaranteed by

the Eighth Amendment.

In People v. Bandhauer, 426 P2d 900, 904-05, cert den, 389 US 878

(1967), the California Supreme Court held that, henceforth, the prosecutor

would not be permitted to submit rebuttal argument in the penalty phase of a

capital trial. Accordingly, if the defendant were limited to one closing argument

on the fourth question, then the state should also be so limited. If the state were

entitled to one closing argument and a rebuttal argument on the fourth question,

then defendant should be so entitled.

Here, the state was permitted to make two arguments in favor of the

death penalty and defendant only one against. Accordingly, the proceeding did

not maintain scrupulous regard for impartiality and fairness and did not employ

sufficient safeguards against an arbitrary decision. The trial court denied

defendant due process and a reliable, impartial and non-arbitrary sentencing

hearing.

The error was not harmless because defendant was denied the final

opportunity to persuade the jury to spare his life. See Charles v. Palomo, 347 Or

695, 227 P3d 737 (2010) (error in denying the plaintiff rebuttal argument

affected the plaintiff’s substantial right, and thus was reversible error, because

the plaintiff was denied the chance to persuade the jury about the flaws in the

292

defendant’s argument); see also Wike v. State, 648 So 2d 683, 687 (Fla

1994). This court should reverse defendant’s sentence of death.

ONE HUNDRED TWENTY-NINTH ASSIGNMENT OF ERROR

The trial court erred in imposing the death penalty over defendant’s

Eighth Amendment objection to Oregon’s system of lethal injection.











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Standard of Review

The issue of whether a particular punishment is cruel and unusual under

the Eighth Amendment is a question of law. See, e.g., State v. Rogers, 313 Or

356, 379-380, 836 P2d 1308 (1992).

Argument

I. Introduction In Baze v. Rees, 553 US 35, 128 S Ct 1520, 170 L Ed 2d 420 (2008), the

Supreme Court upheld Kentucky’s lethal injection protocol over an Eighth

Amendment challenge. Oregon’s lethal injection is facially similar to that at

issue in Baze, in that it employs the same three-chemical combination (sodium

thiopental, pancuronium bromide, and potassium chloride) administered via an

IV catheter into one of the inmate’s veins.35 However, the Baze plurality relied

35 Under ORS 137.473, “[t]he punishment of death shall be inflicted

by the intravenous administration of a lethal quantity of an ultra-short-acting barbiturate in combination with a chemical paralytic agent and potassium chloride or other equally effective substances sufficient to cause death.” The website of the Oregon Department of Corrections indicates that sodium pentothal and pancuronium bromide are employed as the barbiturate and the paralytic. See Department of Corrections, “Capital Punishment Facts,” https://www.oregon.gov/doc/OC/pages/cap_punishment/cap_punishment.aspx#Misc__Capital_Punishment_Facts (last visited September 29, 2016). Sodium pentothal is another term for sodium thiopental. Webster’s Third New Int’l Dictionary 2164 (unabridged ed 2002).

294

heavily upon the fact that procedural safeguards put in place by Kentucky in

the protocol substantially lowered or eliminated the risk that an improper or

insufficient dosage of the drugs would be administered. Those safeguards do

not exist in the Oregon protocol.

II. Oregon’s lethal injection protocol lacks the safeguards in the Kentucky protocol that were relied upon by the Baze Court. The defendants in Baze conceded that “‘if performed properly,’”

Kentucky’s execution procedures would be humane and constitutional. 553 US

at 49. They argued, however, that the execution protocol created “a significant

risk that the procedures will not be properly followed—in particular, that the

sodium thiopental will not be properly administered to achieve its intended

effect—resulting in severe pain when the other chemicals are administered.” Id.

(emphasis in original).

The majority opinion of the Court recognized that “subjecting individuals

to a risk of future harm—not simply actually inflicting pain—can qualify as

cruel and unusual punishment.” Id. However, “to prevail on such a claim there

The Baze opinion describes the drugs used in the execution protocols,

and their effects, as follows: sodium thiopental is administered to induce “a deep, comalike unconsciousness.” 553 US at __, 128 S Ct at 1527. Pancuronium bromide “is a paralytic agent that inhibits all muscularskeletal movements and * * * stops respiration [,]” Id. Potassium chloride “induc[es] cardiac arrest” to cause death. Id. “The proper administration of the first drug ensures that the prisoner does not experience any pain associated with the paralysis and cardiac arrest caused by the second and third drugs.” Id.

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must be a ‘substantial risk of serious harm,’ an ‘objectively intolerable risk

of harm.’” Id. at 1531 (quoting Farmer v. Brennan, 511 US 825, 842, 846 n 9,

114 S Ct 1970, 128 L Ed 2d 811 (1994)).

A plurality of the United States Supreme Court found that the Kentucky

execution procedures at issue in Baze failed to present a substantial or

intolerable risk of harm. According to the plurality opinion authored by Chief

Justice Roberts,

“[i]t is uncontested that, failing a proper dose of sodium thiopental that would render the prisoner unconscious, there is a substantial, constitutionally unacceptable risk of suffocation from the administration of pancuronium bromide and pain from the injection of potassium chloride.”

Baze, 553 US at 53.

Chief Justice Roberts, however, found that the petitioners failed to show

that such a risk existed, because “Kentucky has put in place several important

safeguards to ensure that an adequate dose of sodium thiopental is delivered to

the condemned prisoner.” Id. (emphasis added). Those safeguards involve the

training and qualifications of the persons who insert IV lines into the prisoner

and administer the fatal drugs, the procedures employed during the

administration of the drugs, and the presence of designated observers to watch

for and report any problems with the administration of the drugs. Critically,

none of the safeguards exist in the execution protocol employed in Oregon.

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A. The training and qualifications of persons administering the drugs

The training and qualifications of the persons inserting the IVs and

administering the three-drug combination have a direct impact on the risk that

the drugs will be improperly administered. The Kentucky protocol approved in

Baze requires that “members of the IV team must have at least one year of

professional experience as a certified medical assistant, phlebotomist, EMT,

paramedic, or military corpsman.” Id.

In fact, the Court noted that the current practice in Kentucky was to

employ medical personnel who have daily experience inserting IVs into inmates

in Kentucky’s prison population. Id. In addition, the medical personnel who

insert the IVs and the rest of the execution team are required to participate in at

least 10 “walk-through” practice executions per year, “including the siting of IV

catheters into volunteers.” Id at 55.

By contrast, Oregon requires only that “medically trained” individuals

prepare the syringes containing the drugs, insert and connect the intravenous

catheters, and assist the assistant superintendent of security in the final

inspection of the catheters and equipment. OAR 291-024-0060; OAR 291-024-

0071; OAR 291-024-0080. Neither the statutes nor the administrative rules

governing the execution protocol define what constitutes a “medically trained”

individual. No training or experience requirements are described. There is

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therefore no guarantee that the persons preparing the drugs for

administration know how to perform that task.

In addition, there is no requirement in Oregon that the persons who

actually administer the fatal drugs be medically trained. The only other mention

of physicians or other medical staff in the protocol is (1) a statutory requirement

that the superintendent of the prison merely invite “one or more physicians or

nurse practitioners” to the execution; and (2) an administrative rule requiring

the superintendent to summon a medical professional after the execution to

certify the inmate’s death. ORS 137.473(1); OAR 291-024-0080(4).

As a result, whereas the Kentucky protocol approved in Baze requires the

intensive involvement of experienced medical personnel who have been trained

extensively in the administration of the lethal drugs, Oregon’s execution

protocol contains no such safeguards.

B. The presence of backup IVs and procedures for employing them

The Kentucky protocol requires the state to prepare “both primary and

backup lines.” Baze, 553 US at 55. In addition, two sets of the lethal injection

drugs must be present before the execution can commence, to “ensure that if an

insufficient dose of sodium thiopental is initially administered through the

primary line, an additional dose can be given through the backup line before the

last two drugs are injected.” Id.

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Perhaps of equal importance, the warden and deputy warden are

required to be in the execution chamber with the prisoner to watch for signs of

problems with the injection procedure, and to direct the use of the backup lines

if the first IVs fail. “Kentucky’s protocol specifically requires the warden to

redirect the flow of chemicals to the backup IV site if the prisoner does not lose

consciousness within 60 seconds.” Id. at 56.

Although Oregon’s protocol requires that backup syringes be prepared

and provided to the Assistant Superintendent of Security “for secure storage”

(OAR 291-024-0060(2)), there is no requirement that those backup IVs be

present at the execution itself. More importantly, there is no requirement that

someone observe the inmate after the injection of sodium thiopental to ensure

he is unconscious during the subsequent injections of the pancuronium bromide

and potassium chloride. Similarly, the Oregon protocol contains no procedures

to be employed if the condemned inmate were to remain conscious or regain

consciousness during the execution.

III. The safeguards missing from Oregon’s protocol address the dangers of improper administration of the drugs, in particular the sodium thiopental that serves as the anesthetic in the procedure Scientific studies and medical reports have found that the chemical

cocktail used in lethal injection creates the effect of suffocation. “Lethal

Injection for Execution: Chemical Asphyxiation?” Public Library of Science

299

Medicine, Vol 4, Issue 4 (April 2007). In addition, reports have noted

problems in the anesthetic used in the procedure:

“Administering drugs intravenously requires extensive training to ensure that the proper intravenous access is secured with minimal pain, and that it is then maintained. Inserting an intravenous catheter can be particularly difficult when the recipient has veins compromised by drug use—not uncommon among prisoners—and constricted by anxiety. Witnesses have described execution personnel poking repeatedly at prisoners trying to find a good vein.

“Standard medical procedures for intravenous administration of anesthesia during surgery require that the equipment and the patient be monitored continuously by someone at the patient’s side. Yet during lethal injection executions, the execution personnel are behind a wall and window, separated by many feet from the prisoner. Most significantly, standard medical procedures require a determination of the level of anesthesia before surgery begins and throughout the procedure.”

“So Long As They Die: Lethal Injections in the United States,” Human Rights

Watch Vol. 18, No. 1(G) (April 2006), 3 (emphasis added). As noted above,

training and monitoring are precisely the areas in which the Oregon protocol (as

opposed to Kentucky’s) is lacking.

The use of sodium thiopental as an anesthetic, particularly in a single

dose and administered by inadequately trained personnel, creates a substantial

risk that the inmate will be awake and experiencing the pain or paralysis

associated with the other drugs used in the execution procedure. That risk is no

small matter. As one report on the use of the three-drug protocol has noted,

“Within a minute after it enters the prisoner’s veins, potassium chloride will cause cardiac arrest. Without proper

300

anesthesia, however, the drug acts as a fire moving through the veins. Potassium chloride is so painful that the American Veterinary Medical Association prohibits its use for euthanasia unless a veterinarian establishes that the animal being killed has been placed by an anesthetic agent at a deep level of unconsciousness (a “surgical plane of anesthesia” marked by non-responsiveness to noxious stimuli).

“Pancuronium bromide is a neuromuscular blocking agent that paralyzes voluntary muscles, including the lungs and diaphragm. It would eventually cause asphyxiation of the prisoner. The drug, however, does not affect consciousness or the experience of pain. If the prisoner is not sufficiently anesthetized before being injected with pancuronium bromide, he will feel himself suffocating but be unable to draw a breath—a torturous experience, as anyone knows who has been trapped underwater for even a few seconds. The pancuronium bromide will conceal any agony an insufficiently anesthetized prisoner experiences because of the potassium chloride. Indeed, the only apparent purpose of the pancuronium bromide is to keep the prisoner still, saving the witnesses and execution team from observing convulsions or other body movements that might occur from the potassium chloride * * *.”

“So Long As They Die: Lethal Injections in the United States,” 2-3 (emphasis

added).

Given the substantial risks created by the lack of safeguards in place in

Oregon’s lethal-injection protocol, defendant is not adequately protected against

the risk that he will experience the extreme pain caused by the potassium

chloride and the suffocation caused by the pancuronium bromide. Oregon’s

execution procedure therefore constitutes cruel and unusual punishment under

the Eighth Amendment. Because Oregon has not defined an alternative method

of execution, defendant’s death sentence must be vacated.

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IV. Defendant’s argument about Oregon’s lethal injection protocol is ripe for appellate review.

In State v Washington, 355 Or 612, 661, 330 P3d 596, cert den, ___ US

___, 135 S Ct 685 (2014), this court held that a similar challenge to Oregon’s

execution protocol was not ripe for appellate review “because, in capital cases,

exhaustion of a defendant’s appeals and other state and federal post-conviction

remedies typically takes many years and, by the time defendant has completed

or waived his right to those procedures, Oregon’s execution protocol may have

been revised; moreover, whether or not that is the case, defendant will have the

opportunity at that time to challenge it.” Defendant respectfully disagrees with

the court’s determination in Washington. The fact that Oregon may revise its

protocol does not mean that it will revise its protocol. The protocol currently in

place is that under which defendant has been sentenced to die.

Moreover, just as the possible revision of the state’s protocol is

speculative, so too is the court’s assumption that defendant’s appeals and

collateral remedies will occupy a great deal of time. While it is certainly not

uncommon for appeals and post-conviction proceedings to last a long time in

capital cases, it is not a universal truth. For example, immediately following this

court’s decision affirming the conviction and sentence of the defendant in State

v. Haugen, 349 Or 174, 176, 243 P3d 31 (2010), he waived any further appeals

and collateral remedies, and the trial court seat an execution date. See Haugen v

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Kitzhaber, 353 Or 715, 717, 306 P3d 592 (2013), cert den ___ US ___, 134

S Ct 1009 (2014). Thus, this court cannot say assume that a lengthy appellate

and post-conviction process will render this assignment of error moot.

ONE HUNDRED THIRTIETH ASSIGNMENT OF ERROR

The trial court erred by giving the jury an “acquittal first” jury

instruction.

ONE HUNDRED THIRTY-FIRST ASSIGNMENT OF ERROR36

The trial court erred in refusing to give defendant’s request special jury

instruction number 21.


Defendant filed a written request for “Special Jury Instruction #21.” That

requested instruction reads, in full,

“LESSER INCLUDED OFFENSE

“ORDER OF DELBERATION

“When you deliberate you should first consider the charged offense. If you cannot agree upon a verdict on that charge you are to consider any lesser included offense.”

In discussing the instructions, defendant acknowledged the existence of

adverse case law on this issue. Tr. 5451. The trial court did not provide



303

defendant’s requested instruction. Instead, on each count including a lesser-

included offense, the aggravated murder charges in Counts 15-1737, it gave an

“acquittal first” instruction. Tr. 5714, 5719, 5722.

Defendant excepted to the trial court’s failure to give special jury

instruction number 21. Tr. 5807.


This court reviews whether a statute is consistent with constitutional

requirements for errors of law. See Foster v. Miramontes, 352 Or 401, 425-26,

287 P3d 1045 (2012) (applying standard).

Combined Argument

At the conclusion of the evidentiary phase, the court instructed the jury

on the order of deliberations consistently with ORS 136.460(2) (the “acquittal-

first instruction”), which provides:

“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.”38

37 The error is probably harmless on Count 17, for which the jury

convicted defendant only on the lesser-included offense of intentional murder.

38 ORS 136.460(2) is memorialized in Uniform Criminal Jury Instruction No. 1012.

304

The court’s instructions violated the Eighth and Fourteenth

Amendments to the United States Constitution.

I. The acquittal-first instruction violates the United States Constitution.

The Eighth Amendment to the United States Constitution provides:

“Excessive bail shall not be required, nor excessive fines imposed, nor cruel

and unusual punishments inflicted.” The Fourteenth Amendment to the United

States Constitution proscribes any state from “depriv[ing] any person of life,

liberty, or property, without due process of law.” The acquittal-first instruction

violates both the Eighth and Fourteenth Amendments.

Both this court and the Court of Appeals have long recognized that an

acquittal-first instruction has an arm-twisting effect on a jury. In State v. Ogden,

35 Or App 91, 94, 580 P2d 1049 (1978), the trial court instructed the jury:

“You have to start with the charge contained in the indictment, the burglary, and you consider the charge of criminal trespass in the second degree only if you should find the Defendant not guilty of the charge of burglary in the second degree.”

In reversing the defendant’s conviction for burglary, the Court of Appeals

explained:

“In summary we conclude it is proper for a court to instruct a jury they are first to consider the charge in the accusatory instrument and if they cannot agree upon a verdict in that charge they are to consider the lesser included offenses. The instruction given by the court was in error and the coercive potential of the instruction requires reversal.”

Id. at 98.

305

In State v. Allen, 301 Or 35, 38, 717 P2d 1178 (1986), this court

recognized that “acquittal first” instructions had been “standard” in Oregon for

more than 75 years and were “favored [by] many federal courts.” However, this

court went on to observe:

“Despite its common usage, however, the instruction has inherent problems. When the jury is instructed in accordance with the ‘acquittal first’ instruction, a juror voting in the minority probably is limited to three options upon deadlock: (1) try to persuade the majority to change its opinion; (2) change his or her vote; or (3) hold out and create a hung jury.”

Id. at 39. Citing scholarly articles and empirical evidence, this court

acknowledged that “the ‘acquittal first’ instruction exacerbates the risk of

coerced decisions, a risk that is probably inherent in any jury deliberation.”

Id. at 40. In reversing the defendant’s conviction for the lesser-included offense,

this court explained:

“Such a result cannot be sustained under the Ogden rationale. That rationale assumes that the coercive effects of the jury instruction prevented the jury from appropriately considering the elements of the principal offense. If that is so, it follows that the jury was also prevented from appropriately considering the elements of any lesser included offense or offenses. We therefore cannot say that any particular conviction for a lesser included offense is ‘such as should have been rendered in the case.’ Or Const, Art VII (Amended), § 3. The kidnapping charges must be retried.”

Allen, 301 Or at 41.

Eleven years after this court decided Allen, the legislature amended ORS

136.460 to require an acquittal-first instruction when instructing a jury on

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lesser-included offenses. Or Laws 1977, ch 511, § 1. The acquittal-first

instruction, however, violates the United States Constitution.

In State v. Naylor, 291 Or 191, 629 P2d 1308 (1981), this court explained

how ORS 136.465 authorized a factfinder to find a defendant guilty of a lesser-

included offense and thereby avoid the “Hobson’s choice” of an “all-or-

nothing” verdict. Id. at 198-99.39 In doing so, this court recognized that there

are “due process implications of instructing on lesser included offenses in a

capital case.” Id. at 198 (citing Beck v. Alabama, 447 US 625, 100 S Ct 2382,

65 L Ed 2d 392 (1980)).

In Beck, the state charged the defendant with the crime of intentionally

causing death during a robbery. Under Alabama law, that is a capital offense,

with felony murder as a statutory lesser-included offense. However, Alabama

law did not permit the jury to consider the lesser-included offense of felony

murder. Instead, if the jury found the defendant guilty of the greater offense,

then the judge decided whether mitigating circumstances warranted a penalty

less than death. Beck, 447 US at 627-29.

Beck testified, and the state conceded that his version of events would

have entitled him to an instruction on the lesser-included offense, if not for the

39 ORS 136.465 provides, “In all cases, the defendant may be found

guilty of any crime the commission of which is necessarily included in that with which the defendant is charged in the accusatory instrument or of an attempt to commit such crime.”

307

statutory proscription against it. The jury found him guilty of the capital

offense. Id. at 629-30.

Beck asserted that the statutory proscription against instructing the jury

about the lesser-included offense of felony murder violated the Eighth

Amendment and the Fourteenth Amendment. Specifically, he argued:

“[In] a case in which the evidence clearly establishes the defendant’s guilt of a serious noncapital crime such as felony murder, forcing the jury to choose between conviction on the capital offense and acquittal creates a danger that it will resolve any doubts in favor of conviction.”

Id. at 632. The United States Supreme Court agreed. In doing so, the court

explained:

“Where one of the elements of the offense charged remains in doubt, but the defendant is plainly guilty of some offense, the jury is likely to resolve its doubts in favor of conviction. In the case before us, for example, an intent to commit serious bodily injury is a necessary element of the crime with which petitioner was charged, but not of the crime of simple assault.”

Id. at 634 (quoting Keeble v. United States, 412 US 205, 212-13, 93 S Ct 1993,

36 L Ed 2d 844 (1973); emphasis in Keeble).

The court indicated that “[s]uch a risk cannot be tolerated in a case in

which the defendant’s life is at stake.” Beck, 447 US at 637. In rejecting

Alabama’s contention that withdrawing the lesser-included offense from the

jury’s consideration heightened the reliability of the jury’s determination of

guilt or innocence, the court analogized to a problem inherent with mandatory

death penalty statutes:

308

“For, as historical evidence indicated, juries faced with a mandatory death penalty statute often created their own sentencing discretion by distorting the factfinding process, acquitting even a clearly guilty defendant if they felt he did not deserve to die for his crime. Because the jury was given no guidance whatsoever for determining when it should exercise this de facto sentencing power, the mandatory death statutes raised the same possibility that the death penalty would be imposed in an arbitrary and capricious manner as the statute held invalid in Furman[ v. Georgia, 408 US 238, 92 S Ct 2726, 33 L Ed 2d 346 (1972)].”

Beck, 447 US at 639-40. In short, a statutory scheme that requires a jury to

determine guilt or innocence in a capital case without consideration of a lesser-

included offense distorts the factfinding process in exactly the same coercive

way that this court and the Court of Appeals previously condemned. The fact

that such an instruction is now statutorily required does not ameliorate its

coercive nature. To the contrary, it mandates distortion of the jury’s factfinding

process.

There is no meaningful difference between failing to instruct a jury that it

may consider a lesser-included offense and apprising the jury that a lesser-

included offense exists while instructing that jury that it may not consider the

lesser-included offense while deciding between guilt and innocence on the

capital charge. Once the factfinding process has been distorted during

adjudication of the greater offense, it cannot be tidied up afterwards. If that

were the case, then Alabama’s system of allowing the court to find mitigation

after the capital verdict would have passed constitutional muster. It did not.

309

ORS 136.460(2), when applied in a capital case, violates the Eighth

Amendment‘s proscription against cruel and unusual punishments and it

violates the due process requirement of the Fourteenth Amendment. The court

erred by instructing the jury that it could consider the lesser-included offenses

only if it first found defendant not guilty of aggravated murder.

Accordingly, this court should reverse defendant’s convictions for

Counts 15 and 16.

CONCLUSION

This court should reverse defendant’s convictions and remand the case to

the trial court for entry of judgment of acquittal or a new trial. In the alternative,

this court should vacate the sentence of death and remand for a new sentencing

proceeding.

Respectfully submitted, ERNEST G. LANNET CHIEF DEFENDER CRIMINAL APPELLATE SECTION OFFICE OF PUBLIC DEFENSE SERVICES ESigned ________________________________ DANIEL C. BENNETT OSB #073304 SENIOR DEPUTY PUBLIC DEFENDER [email protected] Attorneys for Defendant-Appellant David Ray Taylor

Office of Public Defense Services • Appellate Division

1175 Court St. NE • Salem, Oregon 97301-4030 Telephone: (503) 378-3349 • Fax: (503) 378-2163

CERTIFICATE OF COMPLIANCE WITH ORAP 5.05(2)(d) Brief length I certify that (1) this brief does not comply with the word-count limitation in ORAP 5.05(2)(b) and (2) the word-count of this brief (as described in ORAP 5.05(2)(a)) is 75, 319 words. Type size I certify that the size of the type in this brief is not smaller than 14 point for both the text of the brief and footnotes as required by ORAP 5.05(4)(f).

NOTICE OF FILING AND PROOF OF SERVICE

I certify that I directed the original Appellant's Opening Brief to be filed with the Appellate Court Administrator, Appellate Courts Records Section, 1163 State Street, Salem, Oregon 97301, on October 4, 2016. I further certify that, upon receipt of the confirmation email stating that the document has been accepted by the eFiling system, this Appellant's Opening Brief will be eServed pursuant to ORAP 16.45 (regarding electronic service on registered eFilers) on Benjamin Gutman #160599, Solicitor General, attorney for Plaintiff-Respondent.

Respectfully submitted, ERNEST G. LANNET CHIEF DEFENDER CRIMINAL APPELLATE SECTION OFFICE OF PUBLIC DEFENSE SERVICES ESigned ________________________________ DANIEL C. BENNETT OSB #073304 SENIOR DEPUTY PUBLIC DEFENDER [email protected] Attorneys for Defendant-Appellant David Ray Taylor

october 4, 2016 06:30 pm his demurrer because evidence relating to the various acts were not...

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