Murderpedia has thousands of hours of work behind it. To keep creating
new content, we kindly appreciate any donation you can give to help
the Murderpedia project stay alive. We have many
plans and enthusiasm
to keep expanding and making Murderpedia a better site, but we really
need your help for this. Thank you very much in advance.
Ernest
Noland LOTCHES
Ernest Noland Lotches
Multnomah County
Born: 8/2/54
Sentenced to death: 7/23/1993
Lotches killed William G. Hall, 33, a downtown Portland security
guard, during a running gunbattle that terrified Saturday shoppers in
1992. Hall tried to question Lotches about an earlier minor assault.
Lotches fled, and the two exchanged gunfire. Hall died after pulling a
9-year-old child out of the line of fire as Lotches was trying to
commandeer a car.
Interesting fact: Lotches is the only Native American on Oregon's
Death Row.
Status: Death Row.
I. SUMMARY OF FACTS
Because the jury found
defendant guilty of all the crimes charged, we
view the evidence presented at trial in the
light most favorable to the state. SeeState v. Thompson , 328 Or 248, 250,
971 P2d 879, cert den 527 US 1042
(1999) (stating principle).
Cramer radioed to the
Portland Guides headquarters and to other nearby
guides that a man had been assaulted by an
individual who was then near Pioneer Square.
Cramer described defendant and asked for an
officer to respond. Two other unarmed Portland
Guides, Edwards and Calderon, spotted defendant
walking down the street and began to follow him
at a distance of about half a block. They
signaled to Riley, another unarmed Portland
Guide who happened to be nearby, and Riley, too,
began to follow defendant. Defendant appeared to
notice that he was being followed and increased
his pace.
William Hall, an armed EID
officer, approached defendant from the direction
in which defendant was walking. Riley also
converged on defendant. Hall called out to
defendant, stating that he would like to have a
word with him. Defendant then threw his hand up
toward Riley in an apparent effort to strike him.
Riley blocked defendant's swing. Defendant ran
north toward Alder Street. Hall, Riley, Edwards,
and Calderon began running in pursuit.
There is some dispute about
precisely what happened next but, by all
accounts, defendant slowed down and Hall began
yelling, "He's got a gun. Get down." Shots were
fired. Most of the witnesses to the episode
could not say who shot first or even where Hall
was when the first shot was fired. Riley
testified that he saw defendant pull a gun out
of a paper bag and that no shots had been fired
before that moment. A bystander, Gates,
testified that she heard a shot and then saw
defendant pull a gun out of the back of his
pants.
In any event, during that
incident, defendant raised his gun, aimed it
directly at Edwards, and shot at her. Bullets
hit her in the left breast and in the right arm,
fracturing a bone and requiring surgery and the
insertion of a metal plate. Riley dragged the
wounded Edwards into a nearby shop and ran for
cover in the back of the store. Hall engaged
defendant in an exchange of gunfire; two bullets
fired from Hall's gun later were recovered from
inside the shop.
Defendant fled down Fourth
Avenue with Hall in pursuit. Defendant ran up to
a car stopped at a traffic light in which Keaton
and her 9-year-old grandson were riding.
Defendant came up from behind Keaton, pointed a
gun at her head through the half-open window,
and said something to the effect that "You are
going to take me somewhere." Keaton responded,
"No way," and stepped on the accelerator. The
car stalled and Keaton immediately began trying
to unfasten her grandson's seatbelt and shove
him out the car door. While Keaton was fumbling
with the seatbelts, she looked up and saw Hall
standing in front of a pillar along the street
on the opposite side of her car, yelling at
defendant, directing him to get away from the
car and "leave the innocent alone." According to
Keaton, defendant then ceased his efforts to get
into her car and directed his attention to Hall.
Meanwhile, the grandson unlocked the car door,
got out, and ran toward where Hall had been
standing. Keaton took the keys out of the
ignition and threw them down a sewer grate, and
then closed her eyes and waited.
Defendant began shooting in
Hall's direction. Hall left the relative cover
provided by the pillar and pulled Keaton's
grandson to safety. He also shot out two of the
tires on Keaton's car and pushed two transients
out of the line of fire. In the skirmish,
defendant shot Hall twice. One shot entered and
exited Hall's wrist. The other, fatal, shot
entered Hall's arm, traversed his lungs, and
penetrated his heart.
Defendant, himself uninjured,
then fled down Stark Street, hiding his gun
behind his back. He approached a pickup truck
stopped at a traffic light on Washington Street.
Reaching through the window of the truck, he
pointed his gun at the driver's head and ordered
the occupants out of the vehicle. They
immediately complied. Defendant then drove off,
heading the wrong direction down Third Avenue, a
one-way street. He sped down that street,
swerving to avoid oncoming cars. He then drove
over the Burnside Bridge and turned onto Martin
Luther King Boulevard. Defendant next attempted
to turn onto Southeast Ankeny, but he was
driving too fast and was unable to negotiate the
turn. The truck jumped the curb, hit a parked
car and, ultimately, came to a stop after
crashing into some other parked cars in an
adjacent used-car lot.
A customer at the car lot who
saw the crash went to aid defendant. He forced
open the driver's-side door of the truck and
asked defendant if he was hurt. Defendant
answered no and made an effort to get out of the
truck from the passenger side. The customer
asked defendant if he was going to run, and
defendant replied, "Hell, yes, I got to get out
of here." The customer stepped aside, and
defendant slid back to the driver's side to get
out. By that time, several marked police cars
had arrived at the scene. One of them, driven by
Officer Elliot, pulled up in the vicinity of the
truck after having been flagged down by an
individual in front of the car lot. After Elliot
had stopped his car, defendant reached back into
the truck and pulled out his gun. Defendant
turned and aimed the gun in Elliot's direction
and began walking toward him. Defendant then
stopped, assumed a combat stance in which he
squared off and held the gun in front of him
with two hands. When Elliot realized what was
happening, he leaned away from defendant and put
his car in reverse. Defendant fired at Elliot as
he was backing up. Defendant then aimed and
fired a second shot at Elliott that narrowly
missed him and struck the driver's seat of the
police car.
After shooting at Elliot,
defendant began running toward the corner of
Ankeny and Grand Avenue. He attempted
unsuccessfully to commandeer one vehicle, and
then succeeded in getting into a second one,
which someone apparently had abandoned in the
middle of the street. While defendant tried to
start that car, Elliot, now armed with a shotgun,
approached defendant and ordered him to drop his
gun. Defendant again briefly appeared to
consider fleeing. However, by this time, he was
surrounded by other officers. He threw down his
gun and surrendered.
After he was taken into
custody, defendant agreed to give blood and
urine samples. Experts later extrapolated from
those samples that defendant probably had a
blood-alcohol content of approximately .17
percent at the time of the crimes.
Defendant requests that this
court grant him a new trial and assigns 20
claims of error, all relating to the guilt phase
of his trial. We have considered each of
defendant's assignments of error. Several of
those assignments were not preserved for review
or otherwise are not well taken. Other
assignments of error present questions that do
not warrant discussion in this opinion because
they have been resolved in other decisions by
this court. We address the remaining issues in
the order in which the events giving rise to the
assignments occurred during the proceedings
below. As we shall explain, we also address a
matter that was not raised by defendant, but
that arguably constitutes an error apparent on
the face of the record.
III. SUFFICIENCY OF THE INDICTMENT
Defendant argues that the first three counts
of the indictment, for aggravated murder, are
impermissibly vague. Defendant did not demur to
those charges, but argues nonetheless that the
trial court should have stricken them on its own
motion. Those counts state:
" Count 1
"AGGRAVATED MURDER
"The said defendant, on
or about August 22, 1992, in the County of
Multnomah, State of Oregon, did unlawfully
and intentionally attempt to commit the
crime of Robbery in the First Degree and in
the course of and in the furtherance of and
in the immediate flight from said crime
which the said defendant was attempting to
commit, the said defendant personally and
intentionally did cause the death of another
human being, to-wit: William Hall, a person
who was not a participant in the crime,
contrary to the Statutes in such cases made
and provided and against the peace and
dignity of the State of Oregon,
" Count 2
"AGGRAVATED MURDER
"The said defendant, on
or about August 22, 1992, in the County of
Multnomah, State of Oregon, did unlawfully
and intentionally attempt to commit the
crime of Kidnaping in the Second Degree and
in the course of and in the furtherance of
and in the immediate flight from said crime
which the said defendant was attempting to
commit, the said defendant personally and
intentionally did cause the death of another
human being, to-wit: William Hall, a person
who was not a participant in the crime,
contrary to the Statutes in such cases made
and provided and against the peace and
dignity of the State of Oregon,
"Count 3
"AGGRAVATED MURDER
"The said defendant, on
or about August 22, 1992, in the County of
Multnomah, State of Oregon, did unlawfully
and intentionally, in an effort to conceal
the identity of the perpetrator of the crime
of Attempted Murder, cause the death of
another human being, to-wit: William Hall,
contrary to the Statutes in such cases made
and provided and against the peace and
dignity of the State of Oregon[.]"
The state and federal
constitutions give defendant the right to be
informed of the particular charges against him.
Specifically, Article I, Section 11, of the
Oregon Constitution, provides that, "[i]n all
criminal prosecutions, the accused shall have
the right to * * * demand the nature and cause
of the accusation against him, and to have a
copy thereof." The Sixth Amendment to the United
States Constitution provides that, "[i]n all
criminal prosecutions, the accused shall enjoy
the right * * * to be informed of the nature and
cause of the accusation * * *." In addition, ORS
132.550 requires indictments to contain "[a]
statement of the acts constituting the offense
in ordinary and concise language, without
repetition, and in such manner as to enable a
person of common understanding to know what is
intended."
Defendant argues that the
aggravated murder charges in the indictment in
the first three counts fail to meet the
foregoing statutory and constitutional standards,
because they fail to state the particular
elements and circumstances that make up the
offenses charged. That is so, according to
defendant, because, in each case, the aggravated
murder count fails to name the victim or
circumstances of the underlying felony.
Although
defendant concedes that an indictment usually is
sufficient if it tracks the wording of the
statute on which it is based (as the
indictment in the present case does), he argues
that, in this case, more is required because the
three aggravated murder counts do not inform him
of how or against whom the attempted robbery,
attempted second-degree kidnaping, and attempted
murder were alleged to have been perpetrated. In
support of that proposition, defendant cites
State v. Sanders, 280 Or 685, 688-90, 572
P2d 1307 (1977), in which this court observed
that there are occasions when an indictment must
state, directly and with certainty, the
particular circumstances of a crime in order to
bring a defendant within the condemnation of a
statute.
As one illustration of the
problem, defendant points to Count 3 of the
indictment, which alleges aggravated murder
committed to conceal the identity of the
perpetrator of attempted murder. Defendant
argues:
"On the basis of the
evidence presented by the state at trial,
the attempted murder victim could have been
Anissa Calderon, Valencia Edwards, William
Hall, James Riley or Kim Keaton's young
grandson as he ran to the car toward where
Mr. Hall was shot. Because the indictment is
vague as to this material fact, the trial
court was unconstitutionally forced to guess
on the factual and legal theory found by the
grand jury."
The state responds that an
indictment is not required to be as specific as
defendant contends, and cites various cases in
which this court has held that persons' names,
although relevant, need not be pleaded
specifically in an indictment. See, e.g.,
State v. Rood, 234 Or 196, 380 P2d 806
(1963) (charging instrument need not specify
names of purchasers of lottery tickets in
prosecution for sale of lottery tickets);
State v. Nussbaum, 261 Or 87, 94, 491 P2d
1013 (1971) (indictment for crime of rioting
need not include names of co-rioters). In
addition, the state notes that defendant did not
attempt to clarify the matter for the jury by
requesting special instructions regarding the
aggravated murder counts, nor did he except to
the instructions given.
The indictment itself
indicates that defendant was alleged to have
committed more than one attempted robbery and
more than one attempted murder. Moreover, the
facts as proved at trial would support more than
one charge of kidnaping. Under those
circumstances, we agree that defendant would
have been entitled to require the state to
specify which particular facts and circumstances
made up the underlying crimes on which the
charges of aggravated murder were based. But
that fact alone does not justify overturning the
indictment at this stage of the proceeding.
Defendant did not demur or
otherwise object to the indictment. This court
often has held that objections to the
sufficiency of an indictment not timely raised
are waived. See, e.g,
State v. Montez, 309 Or 564, 597, 789 P2d
1352 (1990) (objection to indictment at end of
trial was untimely); State v. Holland,
202 Or 656, 667, 277 P2d 386 (1954) (defendant
who fails to demur at time of arraignment waives
objection to indictment). Defendant argues that
this court should exercise its discretion to
consider his arguments as to the indictment's
alleged deficiencies, despite the failure to
demur, either on the ground that those
deficiencies constitute error apparent on the
face of the record, ORAP 5.45(2), or on the
ground that the indictment's alleged
deficiencies constitute a jurisdictional problem
and, therefore, may be raised at any time.
Error is apparent on the face
of the record only when "the legal point is
obvious, not reasonably in dispute." State
v. Brown, 310 Or 347, 355, 800 P2d 259
(1990). Given that this court repeatedly has
held that an indictment that tracks the wording
of the statute is sufficient, we do not think
that defendant's legal point is so obvious that
it can be said to merit reversal,
notwithstanding defendant's failure to object.
Defendant's jurisdictional argument also is not
well taken.
Our disposition of
defendant's arguments concerning the indictment
does not end the matter, however. In the course
of examining the record in this case concerning
defendant's challenge to the indictment, we have
reviewed the jury instructions that the trial
court gave. Those instructions do not appear to
clarify any of the matters that we have
discussed.
That is, although the three
aggravated murder counts were based on three
underlying felonies, the instructions did not
identify for the jury the victim or attendant
circumstances applicable to each of those
underlying felonies or in any other way ensure
jury unanimity concerning those issues.
The foregoing discovery
concerning the jury instructions led this court
to pose supplemental questions to, and ask for
additional briefing from, the parties. The
questions were:
"1. Did the jury
instructions given in the present case meet
the specificity requirements for such
instructions established in State v.
Boots, 308 Or 371, 780 P2d 725 (1989)?
More specifically, was it necessary for the
instructions concerning each of the counts
of aggravated murder to require the jury to
agree as to the identity of the victim of
the alleged underlying felony and, if so,
did the instructions meet that requirement?
"2. Assuming that the
instructions in question were not
sufficiently specific, did defendant object
to the error? If not, was the error apparent
on the face of the record under the
rationale of State v. Brown, 310 Or
347, 800 P2d 259 (1990)?"
Although the parties' briefs
in answer to our questions vary widely with
respect to what consequences, if any, should
flow from the procedural facts, both sides
appear to agree that: (1) the instructions in
question did not identify the victim of the
alleged underlying felony with respect to any of
the three counts of aggravated murder; and (2)
defendant did not make any contemporaneous
objection concerning those omissions. We turn to
the parties' arguments concerning the legal
effect of those procedural facts.
The state argues that this
court should not address the matter for three
reasons. First, the state argues that the
failure of the instructions to specify the
victim of the underlying felony is not plain
error, because this court never has held that
that sort of specificity is required and,
therefore, there was no violation of a firmly
established legal principle. Second, the state
argues that any error was harmless, because
there was no actual dispute or confusion at
trial as to the identity of the victims of the
underlying felonies. Third, the state asserts
that the trial court's instructions were
adequate in any event.
We address the last point
first because, if the instructions given were
adequate, the other arguments are irrelevant.
For the reasons that follow, we conclude that
the instructions were not adequate.
The starting point for our
inquiry in this respect begins (and ends) with
Boots . In that case, the defendant was
charged with aggravated murder based on two
separate aggravating factors, viz., the
murder was committed in the course of a robbery,
and the murder was committed to conceal the
identity of the robbers. 308 Or at 374. The
trial court specifically instructed the jurors
that they were not required to agree unanimously
on any particular theory, so long as some
combination of the 12 jurors agreed that one or
the other (or both) of the alleged aggravating
factors had been proven. This court held that
that instruction was erroneous because, in order
to convict a defendant of aggravated murder, the
jury must agree unanimously on all the facts
required by a particular subsection of the
aggravated murder statute, ORS 163.095. Id.
at 377. In reaching that conclusion, the court
stated:
"Of course[,] jurors
cannot convict a defendant if they
unanimously agree that he intended to kill a
person but only half believe that he did so.
No more can they convict if they unanimously
agree that a defendant's act caused a
person's death but only half believed that
he acted intentionally. The same is true if
jurors agree that a defendant's act caused a
person's death but do not agree that the
defendant committed a felony, or vice
versa."
Id. In addition, the
court quoted with approval from United
States v. Gipson, 553 F2d 453 (5th Cir
1977), a case in which a defendant was charged
with being a person who "receives, conceals,
stores, barters, sells, or disposes of" a stolen
vehicle in interstate commerce. In that case,
the trial court had instructed the jury that
they need not agree on which of those acts the
defendant had done. The federal court ruled that
that instruction was erroneous, stating:
"Like the 'reasonable
doubt' standard, which was found to be an
indispensable element in all criminal trials
* * *, the unanimous jury requirement 'impresses
on the trier of fact the necessity of
reaching a subjective state of certitude on
the facts at issue. * * * The unanimity
rule thus requires jurors to be in
substantial agreement as to just what a
defendant did as a step preliminary to
determining whether the defendant is guilty
of the crime charged. Requiring the
vote of twelve jurors to convict a defendant
does little to insure that his right to a
unanimous verdict is protected unless this
prerequisite of jury consensus as to the
defendant's course of action is also
required."
Gipson, 553 F2d at
455-56 (citations and footnote omitted; emphasis
added), quoted in Boots, 308 Or at 380.
It is plain from the
foregoing that the jury in the present case
properly could not have convicted defendant of
aggravated murder, for example, based on murder
committed to conceal one's identity as the
perpetrator of attempted murder, if half the
jurors thought that defendant had attempted to
murder Riley and half thought that he had
attempted to murder Edwards. As in the passage
from Gipson that this court quoted with
approval in Boots, the unanimity rule
requires that the jury agree as to "just what
defendant did" to bring himself within the
purview of the particular subsection of the
aggravated murder statute under which he was
charged.
It is true that Boots
is distinguishable factually, because the trial
court in the present case did not instruct the
jurors expressly that they could convict
defendant in the absence of unanimity respecting
which underlying felonies defendant had
committed. However, because the aggravated
murder instructions that were given did not
either limit the jury's consideration to a
specified underlying felony or require jury
unanimity concerning a choice among alternative
felonies, each instruction carried the same
danger that this court had condemned in
Boots. We can perceive of no reasonable
basis for refusing to apply the rule of
Boots to the present case. As a legal
matter, the jury instructions were erroneous.
We turn next to the state's
argument that any errors that may have been
committed in the jury instructions were harmless.
At the outset, we note that
that argument is based, at least in part, on the
fact that, in the state's view, the prosecutor
ensured jury unanimity by clarifying the matter
for the jury, in that he made clear in his
closing argument that counts 1 and 2 were based
on defendant's robbery and attempted kidnaping
of Keaton and that count 3 was based on
defendant's attempted murder of Edwards. This
court previously has rejected the notion that
counsel may fill in the blanks to redeem an
erroneous jury instruction. In Brown,
310 Or at 356, this court stated that
"neither the sufficiency
of the evidence nor the completeness of
counsel's arguments concerning that evidence
is a substitute for the sufficiency of the
instructions. As is usually the case, the
trial court cautioned the jury that what the
lawyers argue is not evidence and that it is
the court's function to instruct the jury as
to the law."
In the present case as well,
the prosecutor's arguments were not a legally
sufficient substitute for necessary jury
instructions. The state's principal argument is
that the present case is distinguishable from
Boots. The state acknowledges that
Boots requires jury unanimity on all
material facts. It argues, however, that the
names of the victims or the other details of the
underlying felonies in the aggravated murder
charges in the present case are not material
facts and, therefore, need not be identified to
the jury. The state contends that
"this is not a situation
where there was any possibility that any of
the jurors could have found that defendant
by different acts in a different location at
a different time committed an attempted
robbery and kidnapping and then murdered
Hall in relation to those crimes. The facts
establish only a single attempted
robbery and attempted kidnapping that
occurred at a discrete time and place by a
single series of acts. The same is true for
the attempted murder, particularly given the
jury's acquittal of defendant on the second
charge [that defendant attempted to murder
Riley]."
Implicit in the state's
argument is the notion that, if there is
a possibility of jury confusion, the identity of
the victim or the circumstances of the
underlying felony is information that
is material and for which jury unanimity is
required. The state merely assumes that it
proved adequately the underlying felonies and
that there was no way that the jury could have
been confused as to what was being referred to
as the underlying felony in each count. As our
discussion of Boots indicates, we agree
with the state's premise. As the discussion that
follows will explain, however, we disagree with
the state's assertion that no juror confusion
was likely.
We turn to an examination of
each of the three aggravated murder counts, to
determine whether there was a substantial
likelihood of jury confusion as to the
underlying felony that was applicable to each
count. The first aggravated murder count was
based on defendant's intentional murder of Hall
in connection with his attempt to commit the
crime of first- degree robbery. The state argues
that the underlying felony charged in this count
refers to the robbery that occurred when
defendant tried to force Keaton to drive him
away from the scene, immediately before killing
Hall. That robbery was not charged separately.
However, as noted, defendant was
charged with (and convicted of) robbery based on
his hijacking of the pickup truck immediately
after he killed Hall. In the absence of
instructions clarifying the circumstances of the
particular robbery referred to, it is impossible
to determine whether, in convicting defendant on
the first count, the individual jurors believed
that defendant committed robbery with respect to
Keaton or with respect to the pickup truck.
The second aggravated murder
count was based on the intentional murder of
Hall in connection with the crime of attempted
kidnaping. As to that felony charge, both Keaton
and her grandson were possible victims. The
kidnaping also was not charged separately. Again,
in the absence of explicit jury instructions,
jury unanimity on a particular attempted
kidnaping victim was not ensured.
Finally, the third aggravated
murder count was based on the intentional
killing of Hall to conceal defendant's identity
as the perpetrator of attempted murder. As noted,
defendant was charged separately with two counts
of attempted murder -- one involving Edwards and
the other involving Riley. The state asserts
that the attempted murder referred to in the
third aggravated murder count was the Edwards
crime. The only way in which that notion was
conveyed to the jury, however, was in the
prosecutor's statement to the jury. As the court
concluded in Brown, that statement was
not a substitute for the sufficiency of the
instructions. Brown, 310 Or at 356.
Because nothing in the instructions respecting
the third count required the jury unanimously to
decide whether defendant was attempting to
conceal his identity as the perpetrator of the
attempted murder of Edwards or of Riley, the
instructions also were erroneous respecting that
count.
Unlike the errors respecting
the instructions on the first two counts,
however, we agree with the state that the error
in the instructions respecting the third count
was harmless. The jury acquitted defendant of
the attempted murder of Riley (10-2), but it
unanimously convicted him of the attempted
murder of Edwards. Because that conviction
proves that all 12 jurors agreed that defendant
attempted to murder Edwards, that conviction
provides the predicate for defendant's
conviction on the third count of aggravated
murder.
Having concluded that there
was error in the instructions concerning all
three counts of aggravated murder and that the
errors respecting the first two of those counts
were not harmless, we turn to whether the errors
respecting the first two counts of aggravated
murder were "apparent on the face of the
record."
We hold that they were. The
elements of "error apparent on the face of the
record" are that: (1) the error is one of law;
(2) the point of law 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. Brown, 310 Or at 355. The
first and third elements are not really at issue;
the question of what must be included in a jury
instruction is a question of law, and what was
or was not included is determined readily by
examining the instructions that were given.
Therefore, the only issue is whether the errors
were "obvious."
We conclude that they were.
It has been clear in Oregon, at least since
Boots, that a jury must be instructed
concerning the necessity of agreement on all
material elements of a charge in order to
convict. The factual distinctions between the
present case and Boots are not such
that a court reasonably could doubt what its
duties respecting jury instructions would be.
In summary, we hold that the
trial court erred in failing to instruct the
jury fully respecting the three counts of
aggravated murder. We further hold that, with
respect to the first two of those counts, the
error was not harmless. We hold that the error
was harmless with respect to the third count.
Finally, we hold that, although defendant did
not object at the time, the errors respecting
the first and second counts were apparent on the
face of the record. Defendant's convictions for
aggravated murder respecting the first two
counts must be reversed and the case remanded to
the trial court for further proceedings. However,
because we do not reverse defendant's conviction
for aggravated murder on the third count, we
proceed to examine defendant's other assignments
of error.
IV. JURY SELECTION
Defendant raises three
assignments of error arising out of the jury
selection process. First, defendant contends
that the trial court erred in rejecting his for-cause
challenge to one juror, Nunez, who had expressed
his personal views in favor of the death penalty.
Second, defendant contends that the trial court
erred in excusing for cause two other
prospective jurors, Warren and Robotham, who
expressed their personal opposition to the death
penalty. Third, defendant claims that the
prosecutor improperly vouched for his case
during the voir dire process by stating
that he "anticipated" that defendant would be
found guilty of aggravated murder and that there
would be a penalty phase to the trial. We do not
consider that third assignment of error, because
it was not preserved in the trial court and, in
any event, this court rejected that precise
claim in State v. Nefstad, 309 Or 523,
526-27, 789 P2d 1326 (1990) (prosecutor's
statement to effect that "I anticipate" there
will be a penalty phase to the trial held not to
constitute improper expression of belief in the
defendant's guilt). For the reasons that follow,
we also conclude that neither of defendant's
other jury selection arguments is well taken.
Jurors may be
challenged for cause on the basis of, among
other things, actual bias.(9)
ORCP 57 D(1)(g) (incorporated by reference and
made applicable to criminal trials in ORS
136.210(1)). The determination whether a
prospective juror actually is biased is a
factual question "to be determined by the trial
court in the exercise of its discretion."
Montez, 309 Or at 574-75; ORCP 57 D(1)(g).
Because the trial court has the advantage of
observing the challenged prospective juror's
demeanor, apparent intelligence, and candor,
that court's judgment as to a prospective
juror's ultimate qualifications is entitled to
great weight. Montez, 309 Or at 575;
Lambert v. Srs. of St. Joseph, 277 Or
223, 228-29, 560 P2d 262 (1977). Accordingly,
the trial court's decision will not be disturbed
absent a finding of "a manifest abuse of * * *
discretion." Nefstad, 309 Or at 528.
As this court stated in
Montez, "[a] prospective juror's approval
of or opposition to the death penalty alone is
not determinative of whether the juror may serve
as a juror or must be excused. The question is
whether the prospective juror's views would
prevent or substantially impair the performance
of his or her duties if selected as a juror."
309 Or at 575. The trial court makes that
determination by looking at the totality of the
potential juror's voir dire testimony
to discern whether it suggests the "'probability
of bias.'" Nefstad, 309 Or at 537 (quoting
Lambert, 277 Or at 230).
Defendant argues that Nunez
should have been excluded for cause, because he
had expressed a general view in favor of the
death penalty for individuals convicted of
aggravated murder. However, as explained above,
the fact that a juror favored the death penalty
would not necessarily disqualify the juror from
serving as a juror. The question, then, is
whether there is evidence in the record to
support the trial court's conclusion that Nunez
could serve as a fair and impartial juror. There
is such evidence.
Both in his questionnaire and
in his response to defense counsel questioning,
Nunez responded that he did not believe that the
death penalty was appropriate in all cases of
aggravated murder. He also expressed his belief
that he could put aside his feelings regarding
the death penalty and make a decision in the
case on the basis of the evidence and the
court's instructions. His voir dire
examination does not establish that he was
biased against defendant personally or that he
was unable to follow the law. The trial court
was entitled to believe that Nunez would be a
fair and impartial juror. We find no error.
Defendant also contends that
the trial court abused its discretion (and
therefore erred) in excluding Warren and
Robotham on the state's for-cause challenge.
Defendant argues that the record with respect to
each juror demonstrates that they could have put
aside their personal opposition to the death
penalty, fairly heard the evidence, and followed
the court's instructions. Defendant argues that,
under Gray v. Mississippi, 481 US 648,
107 S Ct 2045, 95 L Ed 2d 622 (1987), the
improper exclusion of a juror never is harmless
error and that, therefore, he is entitled to a
new trial.
The issue, again, is whether
there is evidence in the record to support the
trial court's determination that Warren and
Robotham would not be fair and impartial. Our
review of the record satisfies us that there was
ample evidence to support the trial court's
conclusion as to each of those jurors.
Warren expressed significant
hesitancy in her ability to impose the death
penalty. In her jury questionnaire, she
indicated that she was "not sure" of her
feelings about the death penalty. During the
voir dire examination, she stated that she
was neither for nor against the death penalty
but, upon questioning by defense counsel, she
explained,
"I wouldn't think I could
make a decision if someone should die or not.
I feel that's God's decision. If it should
be, it should be. But I don't think I could
ever condemn somebody to death. I don't
think I could."
On further inquiry from
defense counsel, Warren stated that she would
follow the court's instructions with respect to
the four death-penalty questions. However, when
the prosecutor and the trial court probed her
views, Warren repeatedly stated that she did not
think that she could make the decision to
sentence someone to death, regardless of the
evidence. In response to defense counsel's
efforts to rehabilitate her, Warren ultimately
stated, when asked if she could vote "yes" to
the penalty-phase questions, "I could do it, yes.
Yes, I could do it."
At the conclusion of the
voir dire examination, the trial court
excused Warren for cause. The court ruled:
"I am going to grant the
state's motion despite the answer to the
last question. It is pretty apparent to me
that Ms. Warren's beliefs have changed since
she did fill out the questionnaire. Her
beliefs are such that they would
substantially interfere with her ability to
decide the questions that will be put to her
in the penalty phase of the case."
In response to defendant's
continued objection to excusing Warren, the
trial court explained its ruling in further
detail:
"I realized her response
to the last question. I did note that. My
problem is, I guess among other things, it
is pretty clear to me she pretty much would
agree with any proposition put to her on the
issue. Just judging her responses to the
questions from both sides, the problem that
she has with conscientious beliefs are such
that she did pretty clearly, and to me more
forthrightly, indicate that she would not
consider properly the possibility of
deciding to impose a death sentence based on
her beliefs.
"I think that her
responses, what she said earlier, she would
try to follow the court's instructions and
the law that applies to the case are the
more honest answers to the questions put to
her. In essence, in the final analysis, even
saying she could try to put aside her
beliefs, she indicated that she really could
not vote for the question in the affirmative.
It is clear to me that her views would be
such that she would be pretty substantially
impaired in terms of following the legal
requirements."
The foregoing demonstrates
that the trial court gave due consideration to
all of Warren's statements and, based on those
statements and on the court's observation of her
demeanor and candor, determined that she would
be unable to be fair and impartial. Because of
the contradictory nature of Warren's various
responses, we think it particularly important to
defer to the trial court's determination.
SeeNefstad, 309 Or at 538 (according
trial court's conclusions great weight under
similar circumstances). The record supports the
trial court's factual findings respecting
Warren's ability to perform her role as a juror.
We find no error.
Robotham also expressed
contradictory views concerning the death penalty.
In his jury questionnaire, he indicated strong
disagreement that most murderers should receive
the death penalty, expressed no opinion whether
he could vote to impose the death penalty, and
indicated that he had such strong feelings
against the death penalty that he would be
unable to be fair and impartial. During voir
dire, Robotham stated that, philosophically,
he opposed the death penalty, explaining, "[a]side
from the fact that an innocent person could be
convicted, I am basically opposed to the State
taking a life."
During questioning by defense
counsel, Robotham moderated the foregoing
statements by repeatedly answering that he
thought that he would be able to answer the four
death-penalty questions fairly and impartially,
and that he thought that he would be able to
follow the court's instructions. On further
questioning by defense counsel, Robotham
indicated that he had changed his mind since
completing the voir dire questionnaire
and had changed his "no opinion" response to the
question whether he could vote for the death
penalty to "Yes, I think I could" vote to impose
the death penalty.
In answer to the prosecutor's
questions whether Robotham thought that his
strongly-held views against the death penalty
substantially would impair his ability to have a
role in executing defendant, Robotham answered:
"Well, I guess all I
could say is I make an effort to follow the
law. I think a completely open mind is a
myth.
"* * * * *
"But that's all -- I
would make an effort to give an impartial
judgment."
On further questioning by the
prosecutor, Robotham emphasized repeatedly that,
although he would make every effort to be fair,
he could not say for sure whether his opposition
to the death penalty or even the presence of
defendant in the courtroom for a few weeks might
impair his ability to follow the law. Moreover,
when asked to consider the matter in terms of
percentages, he estimated that there was a 60
percent chance that he could put his feelings
regarding the death penalty aside. Finally,
during further questioning by defense counsel,
the following interchange took place:
"Q. [I]f you felt the
State had proven beyond a reasonable doubt
on all four questions yes, could you vote
yes on all four questions based upon
evidence and the instructions?
"A. Well, again, I think
I could.
"Q. You would try your
hardest?
"A. Again, I don't feel
comfortable to say yes or no. I think I
could.
"Q. So basically you are
saying, given everything we discussed, all
the questions [the prosecutor] asked you and
I asked you and the judge told you, do you
think you can be fair to both sides in this
case given the issues of the death penalty?
"A. Yes."
The trial court granted the
state's motion to excuse Robotham for cause. In
so doing, the court stated:
"I find that even though
he has indicated that he would try to set
aside his personal beliefs against the death
penalty, he did indicate that he would have
a 60\40 percent difficulty in setting aside
his opinions and that is certainly a
substantial infringement upon his capacity
to follow the court's instructions and
follow the law that applies."
Again, the trial court,
having had the opportunity to observe Robotham's
demeanor and to listen to the tone of his
answers, was in the best position to determine
whether Robotham would be able to be a fair and
impartial juror. The trial court concluded that
Robotham's strong opposition to the death
penalty would prevent him from following the
court's instructions, notwithstanding his firm
and sincere commitment to try to do so. As our
recitation of the record shows, there was
evidence to support the trial court's conclusion.
We find no error.
V. DEFENDANT'S RIGHT TO TESTIFY
Defendant contends that the
trial court denied him his constitutional right
to testify on his own behalf and, accordingly,
that he is entitled to a reversal of his
convictions. A brief recitation of the facts
pertinent to the resolution of this issue is
helpful.
During the trial, defendant
advised the court several times that he wished
to testify. Nonetheless, the question as to the
circumstances under which and the effect to
which defendant would testify was a frequent
subject of discussion among the lawyers,
defendant, and the court.
On one such occasion toward
the end of the defense case (May 27, 1993), one
of defendant's lawyers informed the court that
defendant wished to testify before one of the
psychiatric witnesses was called to the stand.
Defendant's other lawyer also advised the court
that defendant wished to testify that day, and
defendant himself so advised the court. The
trial court replied that, because of their
travel schedules, two psychiatric witnesses
would testify that day instead and that
defendant could testify "tomorrow or next week
or whenever." Later that day, defendant
reiterated, "I do state here that I do want to
take the witness stand though." At the
conclusion of the psychiatric testimony, court
adjourned until June 7, 1993.
On June 7, 1993, the court
heard testimony from three witnesses for the
defense and one witness for the prosecution.
Defendant did not state that day his intention
to testify. The next day, June 8, 1993, after
testimony from one defense witness, the court
called a recess. Then, in open court, outside
the presence of the jury but in front of
defendant, the prosecutor, the court, and
defense counsel engaged in an extended
discussion concerning the defense's intention to
rest its case.
Defense counsel informed the
court that it intended to rest its case with the
proviso that it might still call a certain
witness for surrebuttal. Neither defendant nor
his counsel stated on the record or otherwise
suggested in any manner that defendant still
wished to testify. When the jury was called back
into the courtroom, the trial judge informed the
jury, in front of defendant, that the defense
had rested its case. Again, defendant remained
silent.
The prosecution proceeded
with rebuttal witnesses. At the conclusion of
that testimony, the state advised the court that
it had two remaining witnesses for the next
morning. Still, defendant said nothing about
testifying, and the court adjourned.
The next morning, June 9,
1993, the court and the parties addressed some
procedural matters, the state called its last
two witnesses, and the state rested. At no time
during the foregoing did defendant mention
wanting to testify. After the state rested its
case, defense counsel advised the court about a
possible surrebuttal witness. Neither defense
counsel nor defendant said anything about
testifying. After a brief recess, the defense
recalled one of its psychiatric witnesses for a
brief surrebuttal. After that witness was
finished, defense counsel advised the court that
defendant "may want to testify."
At that point, the trial
court and defendant engaged in a lengthy
colloquy, during which defendant asserted that
it was his recollection that the trial judge had
told him earlier that, if he wanted to testify,
he would have to "wait until the last person to
testify." The court responded, correctly, that
he had told defendant no such thing. Nonetheless,
defendant insisted that that was what he had
understood from the statements made to him by
the court and that was the reason that he had
been sitting silently waiting for the conclusion
of the trial. Additionally, he stated:
"[N]ow I would like to
testify here. But I would want to sit down
and confer with my attorneys tonight before
I do that, because I want to go over the
questions and what have you with them,
because they haven't done that with me yet.
"And I think that again,
for the record, I would like to say that
both my attorneys have been somewhat
reluctant to have me get up and testify on
my own behalf, while I've wanted to get up
and testify on my own behalf. What their
reasons are for not wanting me to testify, I
don't know, but I think that I have the
constitutional right to testify in my behalf,
in my own defense."
The court responded that,
earlier, there had been a discussion about the
ground rules for any testimony by defendant and
that the lawyers were supposed to have
researched the extent to which defendant would
be allowed to make a speech as opposed to
answering questions, and the extent to which the
prosecutor would be allowed to cross-examine
defendant. The court pointed out that defendant
had said nothing further concerning the matter
and that his side had rested. When defendant
protested further, the court replied, "Well, I'm
also hearing you say that you haven't made a
final decision as to whether you're going to
testify, and if so, what you're going to say,
because you said something a moment ago about
conferring with your attorneys this evening."
The court advised defendant
and his counsel that it was calling a recess for
the day and suggested that "you all go on
upstairs and talk about it." The court expressly
left the matter open until the next day, but
reminded defendant that, if he chose to testify,
his testimony would be subject to the rules of
evidence that apply to any witness.
When the court reconvened the
next morning, defense counsel advised the court
that they "spoke to [defendant] last night, and
he expressed to us he would like to address the
court." With that brief introduction, defendant
personally addressed the court and expressed his
concern that, if he testified, his testimony
would be limited within a certain "scope." He
told the court that, given the other evidence
that had been admitted in the case, "it would
seem to me I would be able to go over all the
issues of my entire life, because my entire life
has been brought out before this court, before
this jury, and I don't see where the
restrictions come in at." In response, the court
summarized the status of the case and once again
advised defendant:
"[I]f you were to testify,
you'd have to comply with the rules of
evidence that apply to every other witness
who testifies in court. And you presented
your defense earlier in the week and rested,
and then the state put on its rebuttal
testimony, and then [the surrebuttal witness]
testified yesterday, and essentially the
case is closed.
"And only after the case
was fully closed did you present the issue
last night about wanting to testify, and as
I understood it, you still had not discussed
with your attorneys what it was you intended
to say, which was what the situation was on
May 27th as well."
Defendant then repeated his
view that he had "the right to be able to
testify to anything that pertained to my life,
you know, especially before this jury, because
right now my life is at stake, and I think if my
life is at stake here, then I should be able to
convey to the jury everything that has taken
place within my life, everything that has
happened to me."
The court, defendant, and his
lawyers again engaged in a lengthy exchange in
which defendant continued to assert, and the
court to deny, that defendant had been misled
into waiting to testify on his own behalf.
During that discussion, the state asserted that
defendant should have to make an "offer of proof"
as to the content of his testimony. In response,
defendant simply reasserted his constitutional
right to "tell their side of the story." At no
time during that discussion did defendant
indicate a willingness to testify subject to the
rules of evidence.
At the conclusion of that
exchange, defense counsel conferred off the
record with defendant. Then defense counsel
advised the court, in defendant's presence, that,
under the circumstances, i.e,
considering the topics that defendant wanted to
address, the fact that his testimony would be
limited by the rules of evidence and subject to
the prosecution's cross-examination, and his
lawyers' advice not to testify, defendant had
elected not to testify and not to make an offer
of proof. Defendant's lead lawyer stated:
"Your Honor, I've just
spoken with [defendant]. I did advise him
that if he wished to take the witness stand,
make an offer of proof on what it is that he
would like to say, and in spending some time
with him last night, I think we spent about
an hour, hour and a half, you know, talking
with him, essentially what he would intend
to say would be to basically give a
rendition of his entire life through and up
to the 22nd of August. And as I indicated to
[defendant] last night, and I indicated to
him just now this morning, that would
certainly open up all of these areas for [the
prosecutors] to cross-examine on.
"I also explained to [defendant]
that he would be under the rules,
particularly whenever we talk about the
Evidence Code, Rule 403, relevancy, he'd
also be under some restrictions. He couldn't
talk about what other people said, because
those would be hearsay statements, so he
would be under the same rules as any other
witness.
"I believe he does
understand that, and I also pointed out to [defendant]
that if he did choose to take the witness
stand, while I would have to, as his lawyer
and advocate, attempt to ask him questions
to lead him through the testimony, he would
certainly be doing so against my advice, and
against the advice of my co-counsel * * *.
"That all being said, [defendant]
does inform me that he has said to the court
what he's wished to say to the court, and
that he has nothing further to say to the
court.
"And so with that, I
would at this time formally close the
defense case, except for our motions."
Defendant added nothing
further on the subject and the court submitted
the case to the jury without any further
evidence.
Because of the apparent
conflict between defendant and his lawyers
concerning the matter, defendant argues, the
trial court had a duty to conduct a hearing to
determine whether defendant in fact wished to
exercise his right to testify or whether
defendant instead acceded to his counsel's
advice not to testify. According to defendant,
the trial court's failure to conduct such a
hearing constitutes reversible error. Defendant
also contends that, even if he were found to
have waived his right to testify at the time
when his lawyer rested the defense case, the
trial court abused its discretion and denied
defendant due process of law when it failed to
allow him to reopen his case so that his
testimony could be received.
The state, in response,
agrees with defendant that a defendant has the
right to testify on his own behalf in a criminal
prosecution and that the right is personal to
the defendant, but it argues that the colloquies
summarized above establish that, as a factual
matter, defendant, with the assistance and
knowledge of counsel, knowingly and voluntarily
waived his right to testify.
Accordingly, when defendant's
counsel rested the case in open court, without
calling defendant to testify or notifying the
court of his desire in that regard, the trial
court was permitted to assume that defendant and
his lawyers mutually had decided that defendant
would not testify.
That defendant now insists
that he had not meant to waive his right to
testify does not alter that conclusion. This is
not a proper forum for an inquiry into the
content of defendant's private conversations
with his lawyers or whether the lawyers actually
were acting in accordance with defendant's
wishes.
Such questions are more
appropriately addressed, if at all, in a future
post-conviction proceeding. We consider the
facts as they appeared to the court at the time
when the defense rested. Because defendant
remained mute while his lawyers rested the
defense case, the court was entitled to assume
and, as is apparent from the court's remarks,
did in fact assume that defendant acquiesced in
his lawyers' actions.
Additionally, the record does
not support defendant's assertion that the trial
court separately denied defendant the right to
reopen the case so that his testimony could be
received. It is apparent from the trial court's
remarks to defendant on the second-to-last day
of the trial that defendant would have been
permitted to testify the next day if he had been
willing to follow the rules of evidence.
Defendant conferred with his
lawyers on the matter and defendant's lead
counsel informed the court that defendant "does
inform me that he has said to the court what
he's wished to say to the court, and that he has
nothing further to say to the court." Defendant
does not contend that the trial court should
have allowed him to testify without restrictions.
Under the circumstances, then, defendant waived
his right to testify a second time at the
conclusion of the trial. The trial court did not
deny defendant his right to testify; there was
no error.
VI. EVIDENTIARY MATTERS
Defendant makes seven
different arguments concerning the trial court's
assertedly erroneous admission or exclusion of
evidence. For the reasons that follow, none of
those arguments is well taken.
A. Exclusion of Audiotape
Defendant argues that the
trial court erred in excluding an audiotape of
an interview, which was offered to rehabilitate
the credibility of a defense witness regarding
the exchange of gunfire between defendant and
Hall near Fourth and Alder. On the day after the
shooting, the witness, Gates, told both a police
investigator and a defense investigator, in
separate interviews, that she was standing on
the corner of Fourth and Alder Streets when she
heard someone shout, "Oh, he's got a gun," that
she then looked around, heard a gunshot, and,
after hearing the gunshot, saw a man
who later was identified as defendant pull a gun
out of the back of his pants.
During her examination at
trial, however, Gates retreated from her prior
statements. She testified that, on reflection,
she was not absolutely sure whether she had
heard the gunshot before or after she saw
defendant pull out the gun. The trial court
allowed defendant to introduce the notes of the
police investigator who had interviewed Gates on
the day after the shooting, which confirmed what
Gates had told the investigator concerning the
order of events. However, the trial court
excluded an audiotape of Gates's interview with
the defense investigator, in which Gates had
conveyed the same information.
In response, the prosecution
argued that Gates's tape-recorded statement was
cumulative and irrelevant. The trial court ruled
that, because Gates had testified at trial to
the fact that she had told the police
investigator and the defense investigator
immediately after the event that she had heard
the gunshot before seeing defendant pull out his
gun, there was nothing to rehabilitate. The
trial court did not permit the jury to hear the
audiotape.
Under the Oregon Evidence
Code (OEC), evidentiary error is not presumed to
be prejudicial. OEC 103(1). A defendant in a
criminal case assigning error to the exclusion
or admission of evidence must establish that the
error was not harmless. Article VII (Amended),
of the Oregon Constitution, requires appellate
courts to affirm a conviction, notwithstanding
any evidentiary error, if there is substantial
and convincing evidence of guilt and little
likelihood that the error affected the verdict.
State v. Van Hooser, 266 Or 19, 23-26,
511 P2d 359 (1973) (affirming convictions
despite statutory error, holding that
constitutional provision does not permit
reversal if "there was substantial and
convincing evidence of guilt [and] the error
committed was very unlikely to have changed the
result at trial"). Under the United States
Constitution, the court must determine whether
the error is harmless beyond a reasonable doubt.
Chapman v. California, 386 US 18, 24,
87 S Ct 824, 17 L Ed 2d 705, 710-11 (1967).
In this case, we need not
consider the merits of defendant's argument
concerning the admissibility of the audiotape
under OEC 801(4) because, after carefully
reviewing the record, we conclude that defendant
has failed to show that any error in excluding
the tape was likely to have affected the verdict.
As noted, at the trial, Riley testified that
defendant had pulled out his gun before
the first shot was fired and Gates testified
that she had told the investigators after the
incident that defendant had pulled his gun out
after the first shot was fired. However,
all of the witnesses to the exchange of gunfire
at Fourth and Alder (including Gates) testified
that the words, "He's got a gun," preceded the
first shot. Moreover, all of those witnesses who
knew decedent Hall testified that it was Hall
who uttered those words.
The only reasonable inference
to be drawn from the fact that, before any shot
was fired, Hall exclaimed that defendant had a
gun, was that Hall felt that either he or others
nearby were in danger from defendant and his gun.
Under those circumstances, it would not matter
whether Hall or defendant fired the first shot.
If Hall perceived that defendant was about to
use his gun, Hall would have been justified in
firing the first shot, which undercuts
defendant's self-defense theory. Thus, even if
the trial court erred in excluding the audiotape
from evidence, there is little likelihood that
the error affected the verdict. We conclude that
any error was harmless beyond a reasonable doubt.
B. Exclusion of Testimony
as to Victim's Character
Defendant also contends that
the trial court erred in sustaining the
prosecutor's objection to the admission of
testimony of Hancock, who had been Hall's
supervisor when Hall worked as a police officer
for the City of Boardman. Defendant wished to
elicit testimony about specific instances of
Hall's past conduct which, he claimed, tended to
show that Hall was reckless and dangerous, and
acted outside of established rules and
procedures for police work. Defendant claimed
that evidence of that conduct was relevant to
his self-defense theory, because it supported
his contention that Hall had initiated the
gunfight that resulted in his death. The
prosecution objected that Hancock's testimony
was not relevant. The trial court sustained the
objection on the grounds that Hancock's
testimony would be both irrelevant and unduly
prejudicial, inasmuch as it tended to blacken
Hall's character.
Defense counsel then called
Hancock to the stand in an offer of proof.
Hancock testified that he had trained Hall in
1987 (approximately five years before the
shooting), when Hall was a probationary police
officer for the Boardman Police Department.
Hancock testified that he felt that Hall was
performing inadequately as a police officer and
recounted two instances in which Hall had been
called to a situation that had called for an
arrest, but either had failed to request backup
or to make an arrest. He also testified that he
had had no reason to believe that Hall was a
violent or aggressive person.
At the conclusion of the
offer of proof, the trial court adhered to its
previous ruling. Among the reasons for its
ruling, the court stated:
"You haven't got the
evidence * * * to rise to the level of
habitual conduct that this was his habitual
response to overreact, which is kind of what
you are arguing here.
"You have got two
instances in Boardman some time between
January of '87 and later in the fall of '87
and that doesn't rise to the level of
habitual behavior on the part of Mr. Hall."
C. Exclusion of Evidence
Pertaining to Insanity Defense
Defendant contends that the
trial court erred in limiting the testimony of
defense witness Jurdem, a public defender who
had represented defendant in various proceedings
in Colorado, and in excluding two letters from
Colorado physicians to Jurdem. In the guilt
phase of the trial, defendant asserted an
insanity defense, "based in part on prior
Colorado court adjudications that he was legally
insane."
The state had introduced
evidence from several Colorado State Hospital
physicians that defendant had faked mental
illness during his examinations in Colorado and
that he was, in fact, sane. In response,
defendant wished to call Jurdem, who would have
testified to an alleged bias on the part of two
of the doctors, Doyle and Hufaker, who had
diagnosed defendant as a malingerer. Through
Jurdem, defendant also wished to introduce
letters to Jurdem from two other Colorado
physicians in which those physicians alleged the
existence of a pattern of institutional bias in
the Colorado State Hospital that predisposed its
doctors to misdiagnose its mentally ill patients
as malingerers. Those letters did not address
defendant's particular case.
The state objected on
relevance grounds, arguing that it did not
intend to call either Doyle or Hufaker and that
none of the witnesses whom it did intend to call
would rely on any of Doyle's or Hufaker's
statements or reports. The trial court agreed
with the prosecution that the evidence was not
relevant; the court ruled that Jurdem could
testify only about his opinion of the doctors
who were called to testify. However, the court
stated that it would reconsider the matter if
the evidence became relevant at some future
point in the trial.
Analyzing the matter on a
statutory level, we agree with the state that
defendant's proffered evidence of bias of a non
witness was not relevant. Evidence is relevant
if it has any tendency to prove a fact at issue
in the dispute. OEC 401. Defendant has not shown
how Jurdem's opinion concerning the credibility
of the two Colorado doctors who had diagnosed
defendant as malingering would have had any
tendency to affect the jury's assessment of the
credibility of the witnesses who testified for
the state in its case-in-chief. Moreover, the
trial court gave defendant an opportunity to
establish relevance by showing that the state's
mental health experts had relied on those
doctors' conclusions in forming their own
opinions, but defendant never established that
necessary link. The trial court did not err in
limiting Jurdem's testimony.
In this court, defendant
makes a supplementary, constitutional argument,
asserting that evidence of bias always is
relevant and that the trial court's exclusion of
the evidence violated his rights under the
compulsory process and the confrontation clauses
of the Sixth Amendment to the United States
Constitution. Defendant did not raise those
constitutional arguments before or during trial,
nor is any error of law of that kind apparent on
the face of the record. We decline to consider
the constitutional objections for the first time
on review. ORAP 5.45(2); see also State v.
Langley, 314 Or 247, 253, 839 P2d 692
(1992) (declining to consider constitutional
arguments not raised in trial court).
In this court, defendant
repeats his contention that the trial court
erred in admitting Hall's dying statement
because it was not within any recognized
exception to the hearsay rule. The statement,
however, was not hearsay as defined in OEC
801(3). The statement was made outside of court,
but the "matter asserted" in the statement,
Hall's feelings about not wanting to die, and
his love for his family, was not at issue in the
case. As the prosecutor contended before the
trial court, the statement was offered for a
purpose other than establishing the truth of its
contents, such as establishing Hall's character
as a peaceable family man.
Defendant argues,
alternatively, that the statement was
inadmissible because it was not relevant, OEC
402, its probative value was outweighed by its
prejudicial effect, OEC 403, and its admission
violated various of defendant's constitutional
rights. Defendant, however, did not make any of
those arguments to the trial court and may not
do so for the first time here. ORAP 5.45(2). An
objection to the admission of evidence on one
ground does not preserve an objection on other
grounds. State v. Isom, 313 Or 391,
406, 837 P2d 491 (1992).
Defendant concedes that he
did not preserve his claims under OEC 402 or OEC
403, but asserts that this court should review
the claims nonetheless as plain error. As we
already have had occasion to observe, error is "plain"
only when "the legal point is obvious, not
reasonably in dispute." Brown, 310 Or
at 355. In this case, the error, if any, does
not rise to that level.
Relevant evidence is "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." OEC 401.
This court has stated that OEC 401 is a minimal
requirement for the admission of evidence;
evidence is relevant even if it only slightly
increases or decreases the probability that a
material fact exists. State v. Barone,
328 Or 68, 86, 969 P2d 1013 (1998) cert den
___ US ___, 120 S Ct 977, 145 L Ed 2d 928
(2000).
Under that low standard, we
cannot say that Hall's dying statement was
irrelevant to his character for peaceableness,
which defendant's self-defense theory placed at
issue. It may be that the statement's minimal
probative value was outweighed substantially by
its unfair prejudicial effect. As this court
stated in Barone, "generally, evidence
is unfairly prejudicial under OEC 403 if it
appeals to the preferences of the trier of fact
for reasons that are unrelated to the power of
the evidence to establish a material fact." 328
Or at 87.
Certainly, Hall's dying
statement was inflammatory, inasmuch as at least
one of its effects likely would have been to
appeal to the jury's sympathies for Hall, the
victim. Nonetheless, we do not view the matter
as so obvious that it is not reasonably open to
dispute. Accordingly, we hold that the error, if
any, was not one that is apparent on the face of
the record.
E. Admission of Documents
Defendant assigns error to
the trial court's decision to admit various
documents offered by the prosecution: a list of
books and pamphlets on weapons, combat tactics,
terrorist activities, and false identification
that defendant wanted to purchase; an order of
post-prison supervision, which defendant was
carrying when he was arrested, forbidding
defendant from carrying weapons; and a letter
that defendant had written to prison officials
in early 1992, explaining why he should be
eligible for good-time and work release,
together with the letter defendant had received
from prison staff in response, stating that the
reason for his ineligibility was his failure to
complete a drug and alcohol treatment program.
At trial, defendant objected to the admission of
those documents on the grounds that they were
irrelevant, cumulative, and unfairly
prejudicial. The trial court overruled those
objections on all three grounds.
Error is harmless if there is
little likelihood that it affected the verdict.
In the present case, the jury had heard evidence
of defendant's extensive criminal background,
including his 17 convictions for violent
felonies, such as armed robbery and escape.
Because the jury already had heard that evidence,
it was highly unlikely to have convicted
defendant of aggravated murder on the basis of
his possession of a list of books on weapons or
a post-prison supervision order stating that he
was not to carry weapons.
Moreover, the jury was made
aware of defendant's chemical dependency during
the course of the trial. Indeed, defendant
claimed in his defense that his .17 percent
blood-alcohol level at the time of the crimes
mitigated his culpability, and his medical
experts testified that his drug and alcohol
abuse was a mechanism to self-medicate his
paranoid-schizophrenia. Under those
circumstances, we cannot say that the jury was
likely to have convicted defendant on the basis
of a letter disclosing that defendant failed to
complete a substance abuse program. Consequently,
we reject defendant's arguments.
VII. IMPROPER PROSECUTORIAL CONDUCT
Defendant argues that the
trial court erred in failing to declare a
mistrial after one of his expert witnesses, Dr.
Plazak, informed the court that the prosecutor
was communicating with a juror about Plazak's
testimony. Plazak, a psychiatrist, testified in
support of defendant's insanity defense. In an
in camera session after he had
concluded his testimony, Plazak testified that,
during his testimony, one of the prosecutors had
been making gestures indicating disbelief, such
as head-shaking, scoffing, and laughing, toward
one of the jurors in the first row. Plazak
complained that, toward the end, the
prosecutor's actions became so intense as to be
seriously distracting. Defendant moved for a
mistrial, arguing that Plazak's testimony was
critical to his insanity defense and the
prosecutor's actions improperly could have
tainted Plazak's credibility. Alternatively,
defendant asked the court to direct the
prosecutor to stop his actions and to give a
curative instruction to the jury to disregard
his actions any of the prosecutor's facial
expressions and gestures.
The trial court denied the
motion. The court had not seen the prosecutor
gesticulating. Moreover, the court stated that,
in its experience, lawyers who behave
disrespectfully or in an inappropriate or
obnoxious manner in the courtroom do more harm
to their own cases than to those of their
opponents. In response, defendant asked to be
allowed to question the juror to whom the
prosecutor's gestures appeared to have been
directed. The trial court declined to interrupt
the proceedings for that purpose, reasoning that
it would tend to overemphasize the matter,
particularly if the juror had not seen the
prosecutor's gestures or if the juror had not
been influenced by them.
In this court, defendant
argues that, in gesturing to a juror, the
prosecutor improperly vouched for the state's
case by commenting on and impugning Plazak's
credibility. Further, he contends that the
prosecutor, by his conduct, violated defendant's
due process rights under the United States
Constitution and his right to a fair trial under
Article I, sections 11 and 20, of the Oregon
Constitution. For those reasons, according to
defendant, the trial court abused its discretion
in failing to declare a mistrial.
At the outset, we note that
defendant did not raise either of the
constitutional objections at trial. We will not
consider them for the first time on appeal. We
review the trial court's decision not to declare
a mistrial for abuse of discretion. State v.
Smith, 310 Or 1, 24, 791 P2d 836 (1990). We
use that standard because the trial judge is "in
the best position to assess and to rectify the
potential prejudice to the defendant." State
v. Farrar, 309 Or 132, 164, 786 P2d 161
(1990). As this court stated in Smith :
"The question thus is not
whether this court would have granted a new
trial to defendant, but whether the trial
court abused its discretion in refusing to
do so. Even if we find the prosecutor's
remarks to be improper, tasteless, or
inappropriate, we will not find an abuse of
discretion in the trial court's denial of
the motion for a mistrial unless the effect
of the prosecutor's remarks is to deny a
defendant a fair trial."
310 Or at 24; see alsoState v. Simonsen, 329 Or 288, 300, 986
P2d 566 (1999) cert den ___ US ___, 120
S Ct 822, 145 L Ed 2d 692 (2000) (approving
principle). We hold that the same standard
applies to the prosecutor's alleged nonverbal
conduct.
In this case, we note that
the trial judge did not observe the prosecutor's
alleged inappropriate gesturing personally. The
trial judge determined, however, that, in the
overall context of the trial, it would be more
prejudicial to defendant to call any additional
attention to the conduct than simply to let it
pass.
Because the trial court
clearly was in the best position to consider the
effect of the prosecutor's alleged
gesticulations on all of the participants, that
court's perception of the comparative effects of
that conduct and any remedy that the court might
have fashioned is entitled to deference, even
though that court did not observe that conduct.
The trial court's comments on the matter satisfy
us that that court adequately considered the
potential for prejudice to the defendant and
took steps to minimize the prejudice. Assuming
the prosecutor's conduct to have been as
improper as Plazak asserted, that conduct was
not so prejudicial that the trial court's
decision not to grant a mistrial or to question
the allegedly affected juror can be said to have
denied defendant a fair trial. We find no abuse
of discretion and, therefore, no error.
VIII. JURY INSTRUCTIONS CONCERNING
THE DURESS DEFENSE
Defendant argues that the
trial court erroneously instructed the jury on
the applicability of the defense of duress to
the first two counts of aggravated murder based
on the underlying felonies of robbery and
attempted kidnaping. As noted, we have reversed
the convictions on those two counts because the
jury instructions failed to ensure jury
unanimity as to the circumstances of the
underlying felonies. Accordingly, we do not
consider the assignments of error pertaining to
the trial court's jury instructions on the
defense of duress.
IX. SUFFICIENCY OF THE EVIDENCE
TO SUPPORT CONVICTIONS
Defendant argues that there
was insufficient evidence to support his
convictions on counts 1, 2, 3, 5, 6, and 8, and,
therefore, that the trial court erred in denying
his motions for judgment of acquittal on those
counts. In his brief to this court, defendant
specifically addressed the sufficiency of the
evidence with respect to count 1. With respect
to counts 2, 3, and 5, defendant incorporates by
reference the arguments he made to the trial
court. Defendant does not mention or incorporate
by reference any argument with respect to counts
6 and 8.
As discussed, we have
reversed defendant's convictions on counts 1 and
2; there is no need to consider defendant's
sufficiency-of-the-evidence arguments with
regard to those counts. We have reviewed the
sufficiency of the evidence on counts 5, 6, and
8. We conclude that there was sufficient
evidence to support the convictions on those
counts and that further discussion is not
warranted. We turn to defendant's arguments with
respect to count 3.
This court reviews a
challenge to the sufficiency of the evidence
solely to determine whether a rational
factfinder, viewing the evidence in the light
most favorable to the state, and accepting all
reasonable inferences and credibility choices,
could find the elements of the crime beyond a
reasonable doubt. State v. Cunningham,
320 Or 47, 63, 880 P2d 431 (1994). The issue is
not whether this court would have found
defendant guilty beyond a reasonable doubt, but
whether the evidence is sufficient for the jury
to so find. Id.
Count 3 alleged that
defendant killed Hall in an effort to conceal
his identity as the perpetrator of the crime of
attempted murder. With respect to that count,
defendant argued to the trial court that,
because he committed the attempted murder in
broad daylight in front of numerous witnesses,
the jury reasonably could not have inferred that
he had murdered Hall in an effort to conceal his
identity as the perpetrator of that crime.
The state responded that
there was no evidence that any of the witnesses
knew defendant's identity, and there was
evidence that defendant was attempting to flee
the scene of the attempted murder when he shot
and killed Hall. From that, the state argued,
the jury reasonably could infer that defendant
was attempting to avoid capture and thereby
attempting to conceal his identity when he
killed Hall. We agree that the jury was entitled
to draw the inference that the state described.
Accordingly, we find sufficient evidence to
support the conviction on count 3.
X. REMAINING ASSIGNMENTS OF ERROR
As noted, defendant makes
several additional assignments of error. We have
considered all of them and every argument made
in support thereof. Any assignment of error or
argument not discussed in this opinion either
has been discussed by this court in previous
cases and resolved against defendant, was not
preserved on appeal, or is not well taken.
Further discussion of the issues would not
benefit the bench or bar. Accordingly, we hold
that no error occurred as claimed in any of the
remaining assignments of error.
The judgments of conviction
for aggravated murder on counts 1 and 2 are
reversed. The judgment of conviction for
aggravated murder on count 3 and the sentence of
death are affirmed. The case is remanded to the
circuit court for further proceedings with
respect to counts 1 and 2.