A decade later, sweet memories held hostage by the horror of murder

By Mark Baker - The Register-Guard

August 27, 2006

SUSI LARSEN MEMORIAL SCHOLARSHIP FUND

It was established at Eugene's Maude Kerns Art Center upon her death but has stagnated since. It allows students from kindergarten through high school to take classes at the art center, as Susi did as a child. Fall classes begin soon. If you'd like to contribute, send a check to: The Susi Larsen Memorial Scholarship Fund, Maude Kerns Art Center, 1910 E. 15th Ave., Eugene, OR 97403.

Three packs of Breathmints - one peppermint, one spearmint, one wintergreen. A miniature pair of "Hollyweird" glasses. A miniature basketball the size of a golf ball. Some chocolate candies the size of half dollars, wrapped in gold foil. Some Hershey's chocolate kisses. Some cough drops; a small, plastic racing car that says "Beamer" on the top; some toothpicks carefully bundled together with purple yarn; some tiny plastic barbells; a tiny Mickey Mouse hat that could actually fit on a mouse; and a bottle of juice. Orange juice. Small enough to slide into your eardrum.

All of it stuffed into a plastic tube - the size of a paper-towel roll - with a red cap on it.

This is what you sent me a dozen years ago for my 32nd birthday, Susi, just a couple of weeks after I had packed up everything and moved back to Eugene, leaving you on the south beaches of Los Angeles.

I still have the tube. And it's still crammed with all those things that remind you of me.

It sits in a tattered U-Haul moving box, along with everything else I still have that reminds me of you - pack after pack of photographs, the letters addressed to "Markus!" and sealed with lipstick smudges, the plastic Donald Duck doll holding a "Gang Green" football from Oregon's Rose Bowl season, the big stuffed moose with the forest-green holiday scarf from the Manhattan Beach Nordstrom, the microcassette from my answering machine with your voice on it and the tiny, shiny metallic hearts sprinkled everywhere, all over everything, because that's just the way you were.

Full of heart.

And everything in that box still smells like you, Susi, a sweet tangy smell. It's the most uncanny thing. How can that be, more than a decade later?

Buried on her wedding day

The telephone rings at 1 a.m. Eastern Daylight Time. It's Aug. 27, 1996, in New York City. It's still Aug. 26 in Oregon.

It's you on the other end of the line. We haven't spoken in months.

You're calling from your apartment in Tualatin, just south of Portland, and you want to know if I'll be coming to your wedding in 19 days. Mostly, though, you just want to talk. To reminisce.

After all, I'm your most recent boyfriend since you met your fiance, Keith Hippely, and you and I had talked about getting married ourselves. "I always thought you'd make a good dad," you say to me that night.

It's a sentimental conversation, a healing conversation. And even though I tell you I'm not planning to be there that day, at your father and stepmother's place on the McKenzie River, I have no idea that I'll never speak with you again.

Within 24 hours of that phone call exactly a decade ago, you are dead at 34. And Keith and I and every guy you ever dated will soon be murder suspects.

Instead of your wedding on Sept. 14, 1996, everyone comes for your funeral, including me.

You were born on Dec. 28, 1961, in Mountain View, Calif., just south of San Francisco. You died on Aug. 27, 1996, in a Tigard apartment at the hands of two cold-blooded killers. Two guys with names right out of a John Grisham novel: Billy Lee Oatney Jr. and Willford Johnston III. Two guys who were cell mates in federal prison. Oatney, who had not been out of prison long after serving 12 years for attempted murder, was making earrings for your wedding. But you didn't like them, chose not to buy them for $200.

Murder takes more than a life. It takes, in the case of you, Susi, countless lives. Takes them and turns them upside down, creating an exponential sea of sadness and anger that will never entirely subside.

Not for me. Not for Keith. Not for your family. Not for anyone who ever knew you and was touched by your sweet face and childlike grin, your exuberance for life, your giddy laugh that sometimes ended with a cute, little snort and your ridiculous talent for drawing and painting and everything creative.

But we can still remember you. Your killers could not take away the memories, warm ones that no one will ever have for them.

A hollow heart

Now 44, the same age as you would be, Billy Lee Oatney Jr. resides today where he was put eight years and four months ago - on Death Row at the Oregon State Penitentiary in Salem.

He insists he had nothing to do with killing you, even though he had no one to corroborate his alibi. He left Johnston alone in his apartment, he said during his trial, and went to shoot pool and drink beer that Tuesday at a bar until 1 a.m.

But when Washington County District Attorney Scott Upham found the employee who closed the bar at 10 p.m. and put her on the stand, Oatney had no comeback. The jury unanimously found him guilty and sentenced him to death.

Johnston had turned state's evidence and told the whole story in court - how they raped and tortured you in a drunken haze before strangling you with a plastic garbage bag. In exchange for this confession, Johnston got a life sentence instead of the death penalty.

I testified at Oatney's trial, Susi. I was the only one who could find a photograph of you wearing the tiny hollow gold heart your sister Mindy gave you in 1979, when you were the maid of honor at her first wedding. The police found that heart among other possessions of yours in a storage facility at Oatney's apartment.

You had put the heart on the gold chain I gave you for your 32nd birthday. I found a picture of you wearing it while I was still in New York, enlarged it and sent it to a detective with the Oregon State Police.

Two years later, that same detective found me in Molalla, 40 miles southeast of Portland, where I worked briefly as sports editor of the weekly newspaper there. He came to the office, pulled the heart out and placed it in my hand and asked me if it was the one you wore. I said it was. He handed me a subpoena.

I waited until he was gone before I cried.

I still feel guilty sometimes about what happened to you. I know that giving up the well-paying job you'd had for years at Mattel, where you were a graphic designer, where you made clothes and accessories for Barbie, and your moving back to Oregon in the spring of 1995 had something to do with me. You said so yourself.

And I know that if I had given you what you wanted, had asked you to marry me, instead of breaking up with you, then you never would have moved to Portland, never would have had the temporary roommate who introduced you to Oatney, that you would most likely still be here today.

But then you never would have been set to marry Keith, who you met while still working at Mattel and continued seeing after you moved to Portland. And I know you loved him, too.

Keith and I became friends during the trial, you know. I stayed at his house in Manhattan Beach eight years ago this month during my move to Alabama, to take a newspaper job. There were pictures of you everywhere, still, two years after your death. Keith, like me, is still single. He works at Mattel again after freelancing for a while. He's still a toy designer, back in the Hot Wheels division, still lives in the same Manhattan Beach house.

He turns 50 next year. Your family suspects he'll never marry, not now.

"I'm not sure if I really understand how it's affected me," Hippely, who lost his father to leukemia two years ago, says by phone last week. "The slightest little thing can bring it all back, as if it were yesterday. A smell, a look. Every time I see a butterfly."

You had a butterfly tattoo on your ankle, Susi. It helped the police identify you after they found your badly decomposed body in Champoeg State Park, about 25 miles south of Portland off Interstate 5, two weeks after you disappeared.

"I'm still very bitter"

As you can imagine, your father, Ted Larsen of Eugene, who used to own and operate Eugene's Poole-Larsen Funeral Home, was outraged and overcome with grief at your fate. The judge almost called a mistrial because he kept threatening to jump over the courtroom banister and strangle Oatney. I think he would have done it, too, if he hadn't been restrained. I don't fault him. I felt the same way.

Your father plans to visit your grave today at Rest-Haven Memorial Park in Eugene, where you were buried next to Jeffrey, the brother you never knew who died at 6 months in 1958. And he is still filled with that same rage today. I know, he told me so just a couple of weeks ago.

"I'm still very bitter," says Ted, who turns 71 on Tuesday, as his eyes begin to well with tears. "I fantasize about being able to get ahold of that son of a bitch and kill him. I think about it all the time. I'm so angry, and I don't suspect I'll ever change."

Your father is not the only one who has a difficult time talking about what happened to you, even 10 years later. Your oldest sibling, Ted Jr. of Salem: "He won't talk at all about it," your father says.

Your sudden and shocking death was, of course, hard on your stepmother, Val. She was dealt another blow 11 months after you were killed when her son, your stepbrother Cameron Serbu, committed suicide in Portland's Washington Park when he was just 35. He was the same age as you, remember? A promising neurosurgeon like his father, the late John Serbu of Eugene, he graduated from Marist High School the same year, 1980, that you and I graduated from South Eugene High.

Your family has known so much death, so much tragedy, in such a short time, Susi. Your sister Mindy's first husband, Mike Traudt, the father of the three nephews - Tyler, Tim and Thomas - who adored you, died 16 months after you at 41. He never came out of a coma after being struck by a subway train in New York City in 1995.

I've always wondered how your family battles on. They seem to have your spunk, your spirit.

"You just have to remember to put one foot in front of the other, to eat, to sleep and that's all you can do for a while," Val Larsen says, sitting in the home she shares today with your father on Eugene's Lariat Drive, not far from the Wesley United Methodist Church where your funeral was held five days after they found you.

"Your mind is taken up with thoughts of that child. And you can't concentrate on anything else. It affects your memory and your concentration."

In the beginning, when a child is lost tragically, you think about it every 30 seconds, Val says. After some time passes, maybe you think about them every two minutes. Then every five minutes. And then, Ted Larsen says, maybe, if you're lucky, you get to a place 10 years later where you only think of them seven or eight times a day.

"It's hard to heal completely," Val says. "You don't. You just cope; you just adjust."

'Just herself'

Sudden death is difficult for most of us to grasp under any circumstances, says Jane Vogel, a Eugene psychologist who specializes in trauma.

"But with murder, there's a sense of senselessness about it that makes it harder to understand," she says. "Our mind tends to perseverate, to get stuck on that which we don't understand, making it more difficult to focus on a celebration of a person's life. Even 10 years later."

Your mother, Shannon Inch of Eugene, has come a long way, Susi, since that awful time a decade ago, since she appeared on the March 13, 1998, front page of The Oregonian newspaper with Val and your only sister, Mindy Bush of Portland, all three sobbing in Hillsboro's Washington County Courthouse after Oatney was found guilty. Her Christian faith has gotten her through, she says.

"As more time goes on, I think about the good things and not the bad things," your mother says. She remembers when you were 6 or 7 and the family cat, Daisy, was pregnant and her bed was in your room so you could be right there the minute the kittens were born. When the moment finally came, this is what you mother says you did: "She grabs the whole litter in her hands, comes running up to our bed and said, 'Look Mom and Dad! Look at the kitties!'

Your mother also remembers the pizzas and hot fudge sundaes you made as a little girl, how you always wanted to wait on everyone. "She was a very happy child," your mother says. "She was just herself."

That's how your brother Scott Larsen, who was two years behind us at South Eugene, remembers you, as just yourself. "I'm constantly reminded of her and thinking of Susi," says Scott, now superintendent of the Emerald Valley Golf Club in Creswell. "And it always makes me happy inside. I always think about her spunky and wild personality. She was as creative and artistic as anybody I ever met."

Spirited, whirling, twirling - a 5-foot-1 tornado of energy. "The only time she was really still was when she was drawing," your mother says.

You were not perfect, Susi. You could be exasperating. You suffered from bouts of anxiety and depression and insomnia, just like me, just like a lot of us. You could be obsessive and ornery and sometimes just a pill.

As Mindy says: "There was no one I could get more (ticked) off at." Not that she, too, didn't love you more than life itself.

"She got robbed of her life, and I got robbed of my sister," Bush says. "I don't have my sister anymore."

She still has her sense of humor though, Susi. Same as you did. In fact, she and her husband, Craig, named their golden retriever puppy after you seven years ago. Yep. The dog's name is Susi.

"Some people think it's morbid," Bush says. But she knows you would laugh, that you are laughing, somewhere.

"I just wonder where she is," she says. "I just kind of wonder what her space is now."

Oatney maintains his innocence

EDITOR'S NOTE: Register-Guard reporter Mark Baker requested a Death Row interview this summer with Billy Lee Oatney, convicted in 1998 of killing Susi Larsen 10 years ago today. Oatney, whose conviction and death sentence was confirmed upon appeal by the Oregon Supreme Court in 2003 (his appeal for post-conviction relief continues in Marion County Circuit Court), denied the request, sending this letter instead. It's printed here, exactly as it was neatly written in pencil on lined notebook paper.

Dear Mr. Baker: Thank you for your letter. I am sorry that it has taken me so long to respond to it.

I do in fact remember you from my trial. Both you and the Larsen family put in a great deal of time and effort manipulating the news media to turn public opinion against me, and deny me even the pretext of a fair trial.

For this reason, I will not be giving you a personal interview.

I will however extend you the courtesy of answering a couple of your questions.

To begin with, Yes! I still maintain my innocences. That is because I did not kill Susan Larsen.

Had any of you been interested in real justice at the time, as opposed to the blind vengence you all kept screaming for, you would have looked at the evidence impartially and seen the truth of the matter.

As for what I think happened, I told my side of the story at trial.

Mr. Johnston killed Susy to pay back the money he stole from his girlfriend, so she wouldn't call the police on him. Then to avoid the death penalty, (and get revenge on me for going to the police.) he used me as a scapegoat.

If you knew anything about Mr. Johnston's real criminal history, you would know that that is what he does. Every time he is arrested he blames someone else for his crimes and then takes a plea bargain without fail.

Susan Larsen's death was a vile atrocity against an awesome human being. And to add to it, Mr. Johnston was praised as a hero for the lies he told under oath. Both by the district attorney and Susy's own family.

Mr. Johnston is now doing life without the possibility of parole, as if that were somehow punishment for a man like him. A man who lives and breaths the prison life. He walks the yard defiantly untouchable. Gambling, drugs or even his little sandwich and burrito hustles to fall back on.

Hell, he may even have himself a new prison guard girlfriend, to make up for the one he's lost by now.

No, justice was not served with my conviction. Certainly not the justice that Susan Larsen deserved. A death sentence for Wilford Johnston, the man who actually ended her promising life.

Hopefully one day I will be able to prove the things that I have said. And maybe on that day Susan Larsen can finally get the justice her spirit has long been denied.

That is all I have to say on this matter. Good luck with your article Mr. Baker, and please do Susy's story justice.

STATE OF OREGON, Respondent,
v.
BILLY LEE OATNEY, JR., Appellant.

The victim disappeared on August 27, 1996. Her family told police that defendant might have information about her whereabouts because the victim had been planning to meet with defendant to ask him to make some jewelry for her upcoming wedding.

On September 2, 1996, the Tualatin police interviewed defendant, who stated that he had not seen the victim for three weeks. Later that evening, a Milwaukie police officer, who had no knowledge of the Tualatin police's questioning of defendant regarding the victim's disappearance, stopped defendant because the license plate light on his van was not working. Defendant's license check revealed no reason to detain him, but the police determined that defendant's passenger, Johnston, had an outstanding warrant for his arrest for a parole violation. The police arrested Johnston.

During the traffic stop and investigation of Johnston, one of the police officers saw defendant and Johnston moving a duffel bag inside the van as if to conceal it. The officer asked defendant for consent to look into the bag, and defendant consented. The police found, among other things, a replica of a Colt .45, a stun gun, a dart gun, a large knife, a lock-pick set, a pair of scissors, and a roll of duct tape. The police inventoried the items and returned them to defendant, but did not detain him further.

Meanwhile, as a result of the continuing investigation of the victim's death, the state charged Johnston with one count of aggravated murder. Johnston pleaded guilty to aggravated murder, and, in exchange for his cooperation and testimony, the state agreed not to seek the death penalty.

Defendant was ultimately charged with eight counts of aggravated murder. At trial, both defendant and Johnston testified. Johnston testified that, while he was staying with defendant at defendant's apartment, defendant said that he had a date with the victim, left the apartment, and brought the victim back with him later that evening.

While Johnston was on the telephone in another room, he heard defendant's stun gun being used. Johnston returned to the living room and saw the victim on the floor with defendant holding his stun gun to her neck. Johnston and defendant then tied up the victim and took her to the bedroom. They cut off her clothes with scissors and both of them raped and sodomized her. After forcing her to give them the personal identification number to her bank card, defendant sent Johnston out to get some money from an ATM using the victim's card.

When Johnston returned, he saw that the victim had blood on her face and was not moving. Johnston testified that defendant had told him that defendant had hit and choked the victim because she "just wouldn't [have sex with] me." Defendant said that he had tried to kill her, but "the [victim] just won't die." Defendant and Johnston then held a plastic bag over the victim's head until she stopped breathing.

Defendant assigns as error the trial court's "accomplice-witness" instructions and, in particular, the instruction that stated that, "as a matter of law," Johnston was "an accomplice witness in the commission of the crimes charged in this indictment." The trial judge gave the jury the following accomplice-witness instructions:

"You are instructed that as a matter of law, Willford Nathaniel Johnston, III, is an accomplice witness in the commission of the crimes charged in this indictment." (The accomplice-witness-as-a-matter-of-law instruction.)

"You should view an accomplice witness's testimony with distrust." (The credibility instruction.)

"The testimony of an accomplice in and of itself is not sufficient to support a conviction. There must be, in addition, some other evidence, however slight or circumstantial, other than the testimony of an accomplice that tends to connect the defendant with the commission of the crime. This other evidence or corroboration need not be sufficient by itself to support a conviction, but it must tend to show something more than just that a crime was committed. It must also connect or tend to connect the defendant with the commission of the crime." (The corroboration instruction.)

As noted, at trial, Johnston had testified that he and defendant had committed the crimes together. Defendant testified that Johnston had committed the crimes alone, admitting his own culpability only as to helping to dispose of some of the victim's property, cleaning up his apartment to remove evidence of the victim's murder, and related conduct after the victim had been killed. Defendant first argues that, when the trial court instructed the jury that Johnston was an accomplice witness "as a matter of law," the trial court, in effect, directed a verdict of guilty by instructing the jury that defendant had committed the crimes along with Johnston.

As authority for his arguments, defendant relies on State v. Simson, 308 Or 102, 775 P2d 837 (1989), in which a criminal defendant objected to similar accomplice-witness instructions. In that case, three men had been convicted of the theft of a truck that the defendant drove for his employer. The defendant also had been charged with the theft, but the trial testimony of the three convicted witnesses did not implicate the defendant, contrary to the prosecution's expectation. Over the defendant's objection, the trial court gave the accomplice-witness instructions, including the accomplice-witness-as-a-matter-of-law instruction, to the jury. This court reversed the resulting conviction on the ground that the instructions were "inappropriate to give" under the circumstances:

"By instructing the jury that the witnesses were accomplices in the crime as a matter of law, the trial court effectively instructed the jury that the crime was in fact committed. This deprived defendant of his right to a jury trial on all elements of the charge. Normally, the accomplice-as-a-matter-of-law instruction presents no problem, because the instruction is requested by the defendant. A defendant will risk the implication that a crime was committed in order to cast doubt on the veracity of his accusers. But, in this case, it could serve to cast doubt only on the veracity of those whose testimony favored him. Defendant received no trade-off."

Id. at 109-10. The court also noted:

"We think that, as a general rule, these instructions ought not to be given unless requested by the defendant."

Id. at 110 n 10. Defendant points to that "general rule," arguing that the trial court should have followed it in his case. When the trial court gave the accomplice-witness instructions over defendant's objection, defendant contends, the trial court committed reversible error in the three respects described above.

Before addressing defendant's arguments, it is helpful to discuss the reason for giving the accomplice-witness-as-a-matter-of-law instruction and the appropriate situations in which to give it. The testimony of accomplices long has been viewed with suspicion, both because of concern about the veracity of a witness who, by his or her own admission, has committed a crime, and because of concern that an accomplice might be induced to testify falsely against the person with whom he or she committed the crime by promises of leniency or immunity.

Those concerns are the basis for the statutory requirement, now contained in ORS 136.440, that a defendant cannot be convicted solely on the testimony of an accomplice witness; rather, other evidence must corroborate the accomplice witness's testimony. ORS 10.095(4) sets out the additional rule that a court should instruct a jury that it should view with distrust the testimony of an accomplice. To implement those statutory requirements, a trial court instructs the jury that it should view an accomplice's testimony with distrust and that it cannot convict on the basis of accomplice testimony alone.

B. Defendant's "Directed Verdict" Argument

Turning to defendant's arguments, we first address his argument that the trial court directed, in effect, a verdict of guilty. According to the state, Simson expressly rejected the same argument that defendant makes here. We agree. In Simson, this court rejected the defendant's argument that the accomplice-witness-as-a-matter-of-law instruction amounted to a directed verdict:

"We believe that the jury would understand that the determination of defendant's guilt was its to make and we doubt that the jury would have understood the instruction to be an order to find the defendant guilty, given the instructions as a whole. See generally State v. Hull[, 286 Or 511]."

Simson, 308 Or at 109. See also State v. Gibson, 252 Or 241, 244, 448 P2d 534 (1968) (erroneous instruction that witness was defendant's accomplice, in context in which it was given, did not amount to directed verdict that defendant was guilty).

That reasoning applies here as well. Viewing the instructions as a whole, it is apparent that the trial judge did not instruct the jury that it should find that defendant had committed the crimes. The trial court instructed the jury as to the elements of each crime alleged in the indictment and the relevant definitions of legal terms. It instructed the jury that the state had the burden of proving all elements of the crimes; that the jury was not to take out of context or place undue emphasis on any one instruction; that, as to each count, the jury could find defendant guilty of the offense charged, guilty of a lesser-included offense, or not guilty; and that defendant was innocent until proven guilty beyond a reasonable doubt. It went on to tell the jury, "You have the sole responsibility to determine what testimony or portions of testimony you will or will not rely upon in reaching your verdict." No reasonable juror could have understood the accomplice-witness instructions to mean that the jury was required to find that defendant was guilty.

Defendant's reliance on Simson is misplaced for a more fundamental reason: The "accomplice" testimony in that case exculpated, rather than incriminated, the defendant. The accomplice-witness instructions in Simson, in other words, were erroneous because they directed the jury to view with distrust testimony that was favorable to the defendant, i.e., that the defendant was not involved in the crimes alleged in the indictment. "Instructing the jury that they cannot convict defendant upon uncorroborated accomplice testimony makes no sense when the 'accomplice' testimony itself does not implicate defendant in the crime." Simson, 308 Or at 109. Thus, in Simson, the accomplice-witness instructions were both legally inapplicable and harmful to the defendant. Here, in contrast, Johnston's testimony directly implicated defendant.

For the foregoing reasons, we hold that the accomplice-witness-as-a-matter-of-law instruction did not amount to a directed verdict of guilty in defendant's case.

C. Defendant's Argument That the Instruction Told the Jury That a Crime Had Been Committed

Defendant's second argument -- that the accomplice-as-a-matter-of-law instruction "effectively instructed the jury that the crime was in fact committed" -- is based on this court's holding in Simson that the instruction deprived the defendant in that case of his right to a jury trial on each element alleged in the indictment. The state argues that Simson is distinguishable because, here, defendant's own testimony, while denying responsibility for the crimes, confirmed that the crimes had occurred. Thus, according to the state, because defendant concedes that a crime was in fact committed, the instruction did not improperly deprive defendant of his right to a jury trial on that issue.

We agree. In a criminal prosecution, the state has the burden of proving beyond a reasonable doubt all elements of a charged offense, including the fact that the offense was committed. In Simson, this court held that giving the accomplice-witness instructions over the defendant's objection was error because the instructions "effectively instructed the jury that the crime was in fact committed," thus "depriv[ing] defendant of his right to a jury trial on all elements of the charge." 308 Or at 109-10. Here, in contrast, defendant testified that Johnston had told him that Johnston had killed the victim.

Defendant's third argument is that, even if the accomplice-witness instructions did not amount to a directed verdict, by instructing the jury that Johnston was an "accomplice witness as a matter of law," the trial court, in effect, told the jury that Johnston had solicited, commanded, aided, or abetted someone in the commission of aggravated murder, and the only other possible participant, based on the evidence at trial, was defendant. Defendant's theory of the case, however, was that Johnston had committed the crimes alone. According to defendant, the trial court's accomplice-witness-as-a-matter-of-law instruction was, therefore, error, because it undermined that theory.

Several of this court's cases discuss the circumstances in which it may be error to instruct the jury that a witness is an "accomplice" or an "accomplice witness" as a matter of law, and we now turn to those cases. As noted above, in Simson, this court held that, based on the facts of that case, it was error to give accomplice-witness instructions, including the accomplice-witness-as-a-matter-of-law instruction, and stated in a footnote the "general rule" that accomplice-witness instructions should not be given unless requested by a defendant. 308 Or at 110 n 10.

In Simson, however, as discussed above, the instruction was error because it cast doubt on witnesses whose testimony favored the defendant. This court held "that the cautionary accomplice-witness instructions should only be given when the 'accomplice' testimony implicates the defendant." 308 Or at 104. Here, of course, Johnston's testimony directly implicated defendant, and thus Simson does not support defendant's claim of error.

In Hull, this court discussed the respective roles of the judge and jury in determining whether a witness is an accomplice witness whose testimony must be corroborated. As noted above, the standard set out in Hull is not whether there is sufficient evidence to convict the witness of being an accomplice of the defendant, but "whether there is probable cause to charge the witness with the offense for which [the] defendant is on trial[.]" 286 Or at 516 (emphasis added). Here, of course, Johnston already had pleaded guilty to the murder for which defendant had been charged.

More significantly, Johnston testified that he and defendant had committed the crimes together. The trial court did not have to determine that Johnston and defendant had acted together; it had only to conclude that there was probable cause -- based on Johnston's testimony -- that they did act together. As this court stated in Hull, "if no facts bearing on the elements needed to charge the witness are in dispute, the issue of the potential liability of the witness under ORS 161.155 is a question of law to be decided by the court." 286 Or at 517 (emphasis added). Here, sufficient evidence existed for the trial court to determine, as a matter of law, that Johnston was an accomplice witness, and that determination by the trial court was consistent with Hull.

In State v. Gibson, 252 Or 241, 448 P2d 534 (1969), this court held that the trial court had erred in instructing the jury that a witness was an "accomplice as a matter of law," but that the error was harmless. The defendant in Gibson was convicted of robbery by force and violence. The state alleged that the defendant and an accomplice, Wright, had followed the victim out of a bar and beaten and robbed him.

The defendant admitted participating in the beating, but denied participating in the robbery. Before the defendant's trial, Wright was convicted of both the beating and the robbery. The trial judge, after instructing the jury that the testimony of an accomplice was to be viewed with distrust, stated that, "as a matter of law, I instruct you in this case that Larry Wright is an accomplice of the defendant Monte Gibson." 252 Or at 243-44. This court held that "[s]uch an explicit instruction would be erroneous in a criminal trial, no matter how overwhelming the evidence of guilt might be[,]" id. at 244, but went on to conclude that the error was harmless.

However, defendant is correct in asserting that the facts regarding whether Johnston acted alone in murdering the victim or acted together with defendant as an "accomplice" were disputed at trial. Because those facts were disputed, defendant argues, the trial court's statement that, as a matter of law, Johnston was an "accomplice witness in the commission of the crimes charged in the indictment" was error, because it told the jury that it must conclude that Johnston and defendant had acted together. For the reasons that follow, we reject defendant's argument.

In determining whether it was error to give a particular instruction, the instructions are read as a whole to determine whether they accurately state the law. State v. Barnes, 329 Or 327, 334, 986 P2d 1160 (1999). Defendant is correct that the accomplice-witness-as-a-matter-of-law instruction, viewed alone and as an abstract proposition, would allow a juror to conclude, from the description of Johnston's status as an "accomplice witness," that the trial court was stating that another person necessarily had committed the crimes with Johnston. However, the instruction itself was an accurate statement of the law, because Johnston, as noted above, was an accomplice witness as a matter of law.

The instruction still might be error if, even when considered with the other instructions, it somehow required the jury to accept the state's theory that Johnston had acted together with defendant, rather than defendant's theory that Johnston had acted alone. The other instructions that the trial court gave, however, made clear that the jury was to determine whether the state had proved beyond a reasonable doubt that defendant was guilty of each element of the crimes charged in the indictment. The judge instructed the jury that it was the jury's "sole responsibility to make all the decisions about the facts in this case" and that the jury was to "evaluate the evidence to determine how reliable or how believable the evidence was." In addition to the accomplice-witness instructions at issue here, the trial court gave a number of other instructions as to how the jury should evaluate the testimony of witnesses, including testimony of hearsay statements made by defendant and testimony by witnesses with criminal convictions.

The accomplice-witness-as-a-matter-of-law instruction consisted of less than four lines out of the 40 pages of the trial transcript devoted to instructions and the verdict form. It was followed immediately by the credibility and corroboration instructions. Both literally and in context, the accomplice-witness-as-a-matter-of-law instruction told the jury only that Johnston was the kind of witness who was to be viewed with distrust and whose testimony must be corroborated. It did not tell the jury that the jury must conclude that Johnston and defendant had acted together. Moreover, although the jury was given standard instructions on aiding and abetting, it was not instructed on the definition of "accomplice," and it was not required to make any particular decision based on the meaning or application of that term. Finally, and immediately after the accomplice-witness instructions, the trial court instructed the jury that defendant was presumed innocent unless and until proved guilty beyond a reasonable doubt.

Defendant argues that, because he cannot receive a death sentence unless the jury determines that he acted deliberately, deliberateness is an element of the crime of aggravated murder when the state seeks a death sentence. As such, he maintains, it must be pleaded in the indictment and proved beyond a reasonable doubt to a jury. If the state fails to allege that "element" in the indictment, defendant argues, then the trial court cannot properly submit to a jury the question of deliberateness. In this case, the indictment did not allege that defendant's conduct that caused the victim's death had been "committed deliberately." Therefore, according to defendant, the court improperly submitted the question of deliberateness to the jury during the sentencing phase of his trial. It further follows, defendant argues, that he was not eligible to receive the death penalty.

Defendant's argument is based on Apprendi v. New Jersey, 530 US 466, 120 S Ct 2348, 147 L Ed 2d 435 (2000), and Ring v. Arizona, 536 US 584, 122 S Ct 2428, 153 L Ed 2d 556 (2002). As discussed below, this court previously has considered and rejected the interpretation of Apprendi that defendant advances here. However, defendant asserts that Ring supersedes this court's reading of Apprendi. He further argues that Ring extends Apprendi to support his position that the indictment in this case cannot serve as a basis for a death sentence because it did not allege that defendant's conduct that caused the victim's death had been "committed deliberately."

Defendant relies upon Apprendi for the proposition that any fact that increases the maximum penalty for a crime is a functional element of that crime if the state seeks the increased penalty. In Apprendi, 530 US at 468, the defendant pled guilty to a "second-degree" offense, which was punishable by five to 10 years in prison. A separate statute extended the term of imprisonment beyond the statutory maximum if the trial judge found by a preponderance of the evidence that the crime had been motivated by racial animus. Id. at 468-69. The Supreme Court held that that "sentencing factor," because it increased the maximum penalty for the crime, had to "be submitted to a jury and proved beyond a reasonable doubt." Id. at 490. As a basis for that holding, the Court determined that a state's failure to charge and prove an element necessary to impose an increased punishment violated the Fourteenth Amendment and, with it, a defendant's guarantee of notice and right to a jury trial. Id. at 476.

Defendant concedes that this court rejected his argument under Apprendi, summarized above, in State v. Terry, 333 Or 163, 37 P3d 157 (2001). In Terry, this court held that, "[b]ecause a sentence of death is not an enhancement under the aggravated murder scheme, [but instead is one of the statutory penalties for that crime,] the state is not required to allege in the indictment that the murder was committed deliberately." 333 Or at 189. See also State v. Compton, 333 Or 274, 296, 39 P3d 833 (2002) (citing Terry for that proposition). Defendant argues, however, that the United States Supreme Court in Ring expanded the rule announced in Apprendi.

Defendant concedes that he did not preserve that argument for review. He argues, however, that the error is "apparent on the face of the record." After the Supreme Court's decision in Ring, defendant contends, it is beyond reasonable dispute that, because deliberateness was not charged in the indictment, he was sentenced to death without first being charged with a death-eligible offense. Defendant asks this court, on the basis of Ring, to vacate his sentence, reverse the conviction, and remand for entry of a judgment for the crime charged in the indictment, which defendant asserts was aggravated murder not punishable by death.

There is no reason to address the issue whether allowing the jury to decide the unalleged issue of deliberateness is error "apparent on the face of the record" without first determining whether it was error at all. We therefore turn to the merits of defendant's argument.

Ring concerned a defendant who had been found guilty of felony murder occurring in the course of an armed robbery; the jury, however, deadlocked on the charge of premeditated murder. Under the applicable sentencing statutes, a person convicted of first-degree murder could not be sentenced to death unless the trial court made additional findings of at least one of certain statutory aggravating factors. Following a sentencing hearing in which new evidence was introduced, including testimony that the defendant had been the person who had shot the victim, the trial court made those additional findings and sentenced the defendant to death. The Arizona Supreme Court affirmed. The United States Supreme Court reversed, holding that the defendant's death sentence violated the Sixth Amendment's jury trial guarantee because the maximum punishment that the defendant could have received based on the jury's verdict was life imprisonment; the judge alone found the aggravating factors that made the defendant eligible for the death penalty. Ring, 536 US at ___, 122 S Ct at 2443.

Defendant admits that, under Oregon law, the jury, not the court, determines whether the aggravating factors are present that make an aggravated murder defendant eligible for the death penalty. For that reason, the specific holding in Ring that the death sentence violated the defendant's right to a jury trial is inapposite here. Nonetheless, defendant argues that the Supreme Court's determination on a preliminary issue in Ring undermines the analysis that this court used in Terry to distinguish Apprendi and requires that deliberateness be considered an element of aggravated murder punishable by death that must be charged in the indictment.

As noted, in Terry, this court rejected the argument that "deliberateness" is an element of capital aggravated murder that must be charged in the indictment. The court distinguished Apprendi by noting that the defendant in Terry had received a sentence within the statutory range of punishments for the crime while, in Apprendi, the defendant had been sentenced to a term of imprisonment greater than the statutory maximum for the crime. Terry, 333 Or 188-89. In Ring, the State of Arizona sought to distinguish Apprendi using a similar analysis. The Supreme Court rejected that argument, stating:

"This argument overlooks Apprendi's instruction that 'the relevant inquiry is one not of form, but of effect.' In effect, 'the required finding [of an aggravated circumstance] expose[d] [Ring] to a greater punishment than that authorized by the jury's guilty verdict.' The Arizona first-degree murder statute 'authorizes a maximum penalty of death only in a formal sense,' for it explicitly cross-references the statutory provision requiring the finding of an aggravating circumstance before imposition of the death penalty. If Arizona prevailed on its opening argument, Apprendi would be reduced to a 'meaningless and formalistic' rule of statutory drafting."

Ring, 536 US at ___, 122 S Ct at 2440-41 (alterations in original; citations omitted).

Based on that passage from Ring, defendant argues that "deliberateness" should have been charged in his indictment because a finding of deliberateness exposed him to a greater punishment than the punishment that could have been imposed based on the guilty verdict alone. Because "deliberateness" was not charged in the indictment, defendant maintains, the question whether defendant acted deliberately was not submitted properly to the jury. Without a proper submission to the jury, he asserts, the jury had no authority to find that he had acted deliberately.

The judgment of conviction and sentence of death are affirmed.

DURHAM, J., dissenting.

I dissent from the majority's analysis and conclusion respecting the accomplice-witness instruction that the trial court gave to the jury.

A statute, ORS 10.095(4), requires a trial court, "on all proper occasions," to give an instruction that requires the jury to "view[] with distrust" the testimony of an accomplice. ORS 10.095 provides in part:

"The jury, subject to the control of the court, in the cases specified by statute, are the judges of the effect or value of evidence addressed to them, except when it is thereby declared to be conclusive. They are, however, to be instructed by the court on all proper occasions:

"* * * * *

"(4) That the testimony of an accomplice ought to be viewed with distrust * * *[.]"

This court has admonished trial courts to refrain from giving an instruction under ORS 10.095(4) "unless requested by the defendant." State v. Simson, 308 Or 102, 110 n 10, 775 P2d 837 (1989). The trial court, in contradiction to the general rule set out in Simson, chose to deliver the instruction set out in ORS 10.095(4), despite defendant's objection. The problem here arises because the trial court also chose to convey to the jury an additional factual characterization of the witness -- the identification of Johnston as an accomplice witness as a matter of law -- that ORS 10.095(4) does not require. As I discuss below, that instruction interfered with the jury's role as factfinder and undermined the policy embodied in ORS 10.095(4).

In State v. Gibson, 252 Or 241, 243-44, 448 P2d 534 (1969), this court recognized the distinction between the statutorily required accomplice-witness instruction and an additional jury instruction that explicitly identifies a witness to the jury as an "accomplice," and referred to the latter as an "addendum" to the statutory instruction. In this opinion, I too will use the term "addendum" to refer to the extra-statutory portion of the court's jury instruction in this case that identified Johnston as an accomplice witness as a matter of law.

As the parties agree, and as the majority observes, the record of the guilt phase in defendant's trial presents a sharp factual dispute about Johnston's role in the victim's murder. The state introduced evidence that, if believed, would establish that Johnston and defendant had acted together in killing the victim. Defendant introduced evidence that, if believed, would establish that Johnston had acted alone in killing the victim.

When the parties rested, the court delivered the following jury instructions that related to the testimony of an accomplice:

"You are instructed that as a matter of law, Willford Nathaniel Johnston, the 3rd, is an accomplice witness in the commission of the crimes charged in this indictment. You should view an accomplice witness's testimony with distrust. The testimony of an accomplice in and of itself is not sufficient to support a conviction. There must be, in addition, some other evidence, however slight or circumstantial, other than the testimony of an accomplice that tends to connect the defendant with the commission of the crime. This other evidence or corroboration need not be sufficient by itself to support a conviction, but it must tend to show something more than just that a crime was committed. It must also connect or tend to connect the defendant with the commission of the crime."

(Emphasis added.)

Defendant objected to the addendum embodied in the first sentence of those instructions, emphasized above, asserting that that instruction "cut the heart out of the defense" by defeating the defense theory that "Mr. Johnston did this crime alone and so he [Johnston] would not have been Mr. Oatney's accomplice." It is clear that the challenged instruction identified Johnston, as a matter of law, as an accomplice witness in the commission of the crimes charged in the indictment against defendant. Defendant argued that the instruction "assisted the State in proving that Mr. Oatney was, in fact, at the scene of the crime and helping out."

At the outset, I wish to note that I agree with the majority's stated view that a witness qualifies as an "accomplice," as ORS 10.095(4) uses that term, if the evidence is sufficient to indict the witness for the crimes charged against the defendant. As the following discussion demonstrates, my concern centers on the fact that the court's instruction failed to convey that distinctive legal meaning of "accomplice" to the jury and, thus, required the jury to rely on the materially different common meaning of that term. I also join the majority's suggestion that trial courts can avoid the problem that arises from using the word "accomplice" in a jury instruction simply by informing the jury that the law requires the jury to view the witness's testimony with distrust and that other evidence must corroborate the witness's testimony. ___ Or at ___ n 14 (slip op at 20 n 13).

This court's cases demonstrate that an accomplice-witness instruction can interfere with the jury's responsibility to determine the pertinent facts relating to guilt or innocence. That is so because an accomplice-witness instruction can permit or require the jury to draw multiple inferences about the state's evidence, one or some of which assist the state in establishing the defendant's guilt. For example, in Simson, the defendant, a truck driver, was charged with theft when several people stole his truck. Three of the thieves testified at the defendant's trial, but did not implicate the defendant in the crime. The trial court gave an accomplice instruction over the defendant's objection. This court held that giving the accomplice instruction was a legal error:

"By instructing the jury that the witnesses were accomplices in the crime as a matter of law, the trial court effectively instructed the jury that the crime was in fact committed. This deprived defendant of his right to a jury trial on all elements of the charge. Normally, the accomplice-as-a-matter-of-law instruction presents no problem, because the instruction is requested by the defendant. A defendant will risk the implication that a crime was committed in order to cast doubt on the veracity of his accusers. But, in this case, it could serve to cast doubt only on the veracity of those whose testimony favored him. Defendant received no trade-off.

__________

"¹⁰ We think that, as a general rule, these instructions ought not to be given unless requested by the defendant."

308 Or at 109-10.

In Simson, this court interpreted the accomplice instruction in a common sense fashion. Although the instruction did not state literally that the crime in fact had been committed, the court had no difficulty drawing that reasonable inference from the statement in the instruction that the witnesses were accomplices in the crime. Simson teaches that, when considering the propriety of accomplice instructions, the court takes into account not only the words of the instructions but also the reasonable inferences that the words convey.

In Gibson, as already noted, this court examined whether the trial court erred in instructing the jury that defendant's associate, Wright, "'is an accomplice of the defendant Monte Gibson[]'" in Gibson's trial for robbery. 252 Or at 244. Gibson had admitted that he and Wright had been accomplices in the lesser crime of assault and battery, and that he was guilty of that crime. This court concluded that the addendum instruction, identifying Wright as Gibson's accomplice, "was erroneous, but that the error was harmless." Id. at 245. The Gibson court did not explain why, under the circumstances, the error was harmless. I discuss the harmless error conclusion in Gibson later in this opinion.

The problem created by the addendum instruction in this case more closely resembles the problem addressed in Gibson than that in Simson. Unlike the facts in Simson, defendant conceded that a crime had occurred and, consequently, the accomplice-witness instruction gave the state no undue assistance in proving that aspect of its case.

Gibson lends support to defendant's argument that, under the facts of this case, delivery of an addendum instruction identifying a purported accomplice witness as a matter of law constitutes legal error. As in Gibson, the instruction here bound the jury to accept that the state's witness was an "accomplice" in the crime charged against defendant. The word "accomplice" has the following commonly understood definition that, we must assume, the jurors applied:

"[O]ne associated with another in wrongdoing : one that participates with another in a crime either as principal or accessory * * *."

Webster's Third New Int'l Dictionary 12 (unabridged ed 1993). The factual inference that the addenda in Gibson and this case reasonably conveyed, in the context of the evidentiary record, was that the witness had participated in the crime with another actor and that the other joint actor had been the named defendant.

The majority attempts to distinguish Gibson by pointing out that, in Gibson, the challenged instruction expressly described Wright as an accomplice and linked Wright with the defendant Gibson by name, whereas the instruction here stated that Johnston was an accomplice witness and did not mention defendant by name. The majority's argument is unavailing, in my view, because it fails to acknowledge fully the reasonable inferences that arise from the instructions' words. There is nothing magical about the phrase "accomplice witness." It does not appear in ORS 10.095(4), and the trial court gave the jury no special definition for it. The word "witness" in the phrase "accomplice witness" does nothing to alter the phrase's reasonable inference that Johnston was a witness who had participated with another actor in committing the crimes charged in the indictment. Moreover, the fact that the addendum instruction here did not mention defendant by name is not significant. On this record, only one person possibly could have associated with Johnston in killing the victim: defendant. Only one person is named in the "crimes charged in this indictment[]," to which the instruction referred: defendant. Thus, although some of the words of the addendum here differ from those in the addendum in Gibson, the factual message in each is indistinguishable.

The majority's failure to acknowledge the full effect of labeling Johnston as an accomplice in this case operates to defeat rather than support the legislature's purpose in enacting ORS 10.095(4). ORS 10.095(4) embodies a legislative policy determination that a jury ought to view with distrust "the testimony" -- that is, all the testimony -- of an accomplice. On this record, that policy choice means that, if Johnston had been involved in the murder, then the court must not undermine the jury's responsibility to view with distrust all of Johnston's testimony, including his claim that he and defendant had acted together in killing the victim. The addendum instruction here required the jury to accept the court's factual determination, in contradiction to defendant's testimony, that the witness was an accomplice and, consequently, had not acted alone.

The majority states several reasons for concluding that the delivery of the addendum instruction in this case was not an error. With respect, I do not accept those reasons. The majority acknowledges that the instruction, "viewed alone and as an abstract proposition, would allow a juror to conclude, from the description of Johnston's status as an 'accomplice witness,' that the trial court was stating that another person necessarily had committed the crimes with Johnston." ___ Or at ___ (slip op at 20) (emphasis added). The majority asserts, however, that other instructions told the jury about the state's burden of proof, the jury's role as factfinder, and the like. Id. at ___ (slip op at 21). The majority also points to the fact that the addendum instruction was just four lines in the transcript. Finally, the majority asserts that the addendum "told the jury only that Johnston was the kind of witness who was to be viewed with distrust and whose testimony must be corroborated. It did not tell the jury that the jury must conclude that Johnston and defendant had acted together." Id. at __ (slip op at 22) (emphasis in original).

I agree that we must examine all the jury instructions together to determine whether they accurately state the law. The addendum instruction does convey the inference, as the majority observes, that Johnston did not act alone in committing the murder. Id. at ____ (slip op at 21). However, the addendum instruction required the jury to accept that inference about Johnston "as a matter of law." It did not merely "allow" the jury to agree with that inference, and the majority errs in asserting that the addendum was only permissive in that regard.

None of the other jury instructions to which the majority refers effectively negated the addendum instruction. The most that we can say about those other instructions is that they spoke generally about the subjects of the state's burden of proof and the jury's role as the factfinder.

The majority's assertion that the addendum instruction took up only four lines of the transcript is beside the point. Finally, I cannot agree with the majority's assertion that the addendum instruction did not tell the jury that it must conclude that Johnston and defendant had acted together. As noted above, if Johnston indeed had been involved in the murder, then defendant was the only possible person with whom Johnston could have acted in murdering the victim. The majority disregards both the text of the addendum and the factual record in asserting that, notwithstanding the court's contrary instruction as a matter of law, the jury still could have accepted "defendant's theory that Johnston had acted alone * * *." Id. at __ (slip op at 22).

I turn to the question whether the trial court's error harmed defendant. The court does not presume that an instructional error is harmful to the defendant. The record must demonstrate that the error may have led the jury to convict defendant due to a misstatement of law regarding the jury's discretion to accept or reject inculpatory testimony. See State v. Rawls, 247 Or 328, 330, 429 P2d 574 (1967) (instruction on conclusive presumption regarding intent was error, because jury entitled to accept or reject all or part of a defendant's testimony or state's evidence).

In this case, as noted above, defendant testified that Johnston had acted alone in killing the victim. He did not concede that he took any action to aid Johnston until after Johnston had committed the murder. However, by identifying Johnston as an accomplice witness as a matter of law in the commission of the crimes charged, the addendum instruction restricted the jury's authority to conclude, in conformance with defendant's testimony, that Johnston had acted alone in murdering the victim. The court in Rawls acknowledged that there might be only a slight possibility of a different outcome from an instructional error that misstated the jury's factfinding role, but nevertheless remanded for a new trial. The same result should obtain here.

In Gibson, as noted above, this court concluded that, on the facts of that case, the trial court had erred in delivering the addendum to the accomplice-witness instruction, but that the error was harmless. The court never disclosed its reasoning for that conclusion. However, I infer from the Gibson court's discussion that the decisive facts were that the defendant conceded that he and Wright had been accomplices in the commission of the lesser charge of assault and battery, that the robbery had occurred during the assault and battery of the victim, that the addendum instruction had made no mention of the crime or crimes for which the defendant and Wright had been accomplices, and that the defendant had not objected to the form of the addendum instruction.

Those unique aspects of Gibson are not present here. The court's identification of Johnston as an accomplice witness as a matter of law may have led the jury to conclude that, contrary to defendant's testimony, Johnston did not act alone. See State v. Brown, 310 Or 347, 355-56, 800 P2d 259 (1990) (lack of instruction on causation may have led jury to convict without necessary finding on motivation for murder; "[t]he prejudice to defendant is profound, because the missing element makes the difference between life and death."). Nothing else in the record demonstrates that the error was harmless.