Matthew Dwight Thompson
Multnomah County - Oregon
Sentenced to death: 2/20/1996
A Multnomah County jury convicted Thompson of murdering Andrew J.
McDonald and Paul Whitcher. Thompson stabbed McDonald 14 times after
returning to a Portland tavern he'd been kicked out of. He also stabbed
McDonald's wife, Deborah Oyamada, and another tavern patron. McDonald
died on the way to the hospital. Later that night, Thompson stabbed
Whitcher, who was found dead at Northeast 61st Avenue and Sacramento
Interesting fact: In all, Thompson stabbed the four people more than
Status: Death Row.
IN THE SUPREME COURT OF THE STATE OF OREGON
STATE OF OREGON, Respondent,
MATTHEW DWIGHT THOMPSON, Appellant.
(CC9411-37406; SC S43235)
February 4, 1999
On automatic and direct review of the
judgment of conviction and sentence of death entered by the Circuit
Court for Multnomah County.
William J. Keys, Judge.
Argued and submitted September 10, 1998.
David E. Groom, Public Defender, Salem, argued the
cause for appellant. With him on the brief was Sally L. Avera, Public
Robert B. Rocklin, Assistant Attorney General, Salem,
argued the cause for respondent. With him on the brief were Hardy Myers,
Attorney General, and Michael D. Reynolds, Solicitor General.
Before Carson, Chief Justice, and Gillette, Van
Hoomissen, Durham, Leeson, and Riggs, Justices.*
VAN HOOMISSEN, J.
The judgment of conviction and the sentence of death
*Kulongoski, J., did not participate in the
consideration or decision of this case.
VAN HOOMISSEN, J.
This is an automatic and direct review
of a judgment of conviction and a sentence of death. ORS 163.150(1)(g);
ORAP 12.10(1). Defendant seeks reversal of his convictions for
aggravated murder, ORS 163.095, felony murder, ORS 163.115, and first-degree
burglary, ORS 164.225. Alternatively, defendant asks this court to
vacate his death sentence. We affirm the judgment of conviction and the
sentence of death.
The jury found defendant guilty. We
therefore view the evidence in the light most favorable to the state.
State v. Rose, 311 Or 274, 276, 810 P2d 839 (1991).
About 10:30 p.m. on November 18, 1994, Andrew
McDonald and his wife, Debra Oyamada, were at the Driftwood Tavern in
Portland. Defendant and his companion, Paul Whitcher, entered the tavern
and ordered a pitcher of beer. Oyamada was sitting at a video poker
machine and McDonald was sitting at the bar.
Defendant was wearing a plaid shirt. Defendant and
Whitcher approached Oyamada. Defendant asked Oyamada if she was from "the
'samurai family'" or "from samurai blood." She responded, "As a matter
of fact, yes, I am." Defendant continued, but Oyamada said she did not
want to talk. Oyamada turned her back to defendant because she thought
those were "weird questions" and that defendant was "overbearing."
Defendant persisted, saying, "I need to know about it. I'm a warrior and
I want to know about this." Oyamada replied that she did not want to
talk about it. Defendant then sat next to Oyamada. She said, "You're
sitting in someone else's seat."
After that, defendant got up from the seat and
started to walk toward the door. As they walked, McDonald approached
defendant and Whitcher and said, "Please leave her alone, she doesn't
want to talk about it." Pat Disciascio, the bartender, became concerned,
and he directed defendant and Whitcher to leave the tavern. When
defendant and Whitcher did not leave immediately, Disciascio said "Good
night, you guys," and pointed toward the door.
As defendant and Whitcher
left the tavern, one of the two men said, "I feel like killing somebody
tonight." Defendant and Whitcher then stood outside, where defendant
said to Whitcher, "I'm going to go back in there and kick that guy's ass."
Defendant stated to Whitcher, "If we do this, you know, we're going to
Between five and ten minutes after leaving, defendant
ran into the tavern alone, grabbed McDonald from behind, began striking
him, and dragged him outside. Oyamada tried to pry defendant off of
McDonald. Defendant then turned on Oyamada, hitting her in the head,
throwing her to the ground, and stabbing her in the head and neck. Bill
Jones, another tavern patron, grabbed defendant. Defendant stabbed Jones
six times. Defendant then ran away. Ambulances took McDonald, Oyamada,
and Jones to the hospital. McDonald died as a result of his wounds.
Defendant and Whitcher went to defendant's
grandmother's home, where defendant lived. Defendant introduced Whitcher
to his grandmother, then she went to her room to sleep.
About 1:30 a.m.
that night, defendant's grandmother awoke and went downstairs because
she heard a lot of noise. She saw Whitcher cleaning up broken glass and
defendant cleaning grape juice off the rug. She asked Whitcher to leave.
Defendant said that he was going to see that Whitcher got home safely,
and the two men left the house.
When defendant returned shortly, his
grandmother was still cleaning grape juice. Defendant said he would
clean the grape juice and told his grandmother to go to bed, which she
did. Before she fell asleep, she heard the washing machine running.
About 1:30 a.m. that night, Sally Woolley called
"911" to report that she heard loud, angry, male voices outside her home.
Woolley reported that a man was lying face down in the street. Another
man, wearing a plaid shirt, was kneeling over him and rolled him
partially onto his side. The man in the plaid shirt rummaged through the
other man's pockets, then ran away.
The police arrived. The man on the street was
identified as Whitcher. He had been stabbed sixteen to twenty times and
was dead. One pocket had been turned inside out.
About 2:00 a.m. that night, the police found
defendant walking nearby. He smelled of alcohol and was nervous and
evasive. His shoes were untied and, although it was a cold night, he was
sockless. One eye was swollen. The police thought that defendant might
have witnessed Whitcher's stabbing and questioned him.
that the had been in an altercation, defendant stated that he lived
nearby with his grandmother, but gave the police his mother's address.
He denied ever having been arrested or being on probation. After a
record check indicated that he had been arrested and that currently he
was on probation, defendant was taken into custody.
The police first contacted defendant's mother, who
stated that defendant did not live with her. She gave the police
defendant's grandmother's address. The police contacted defendant's
grandmother at her home. She invited the officers into her home and gave
them permission to look around.
Defendant's grandmother then led them to
the washing machine in the basement and opened the lid. Blood was
smeared on the outside of the machine. The washed clothing in the
machine had stains consistent with blood. The grandmother told police
that the clothing in the machine was defendant's. The state's
criminologist concluded that the DNA recovered from the top of the
washing machine, and from jeans, a shoelace, and a sock found in the
washing machine, was consistent with Whitcher's.
At 12:30 p.m. on November 19, 1994, detectives
returned to defendant's grandmother's home with a search warrant. After
finding no weapons, the police left. The returned around 5:00 p.m. that
With defendant's grandmother's consent, the detectives searched her
basement. A detective found a bloody knife on a cross-beam and a blood-smeared
wallet inside a wood stove. The knife was consistent with defendant's
grandmother's description of a knife defendant owned. The state's
criminalist concluded that the blood on the knife and wallet matched
Whitcher's blood type.
Defendant was charged in a 22-count
indictment with the murders of Andrew McDonald and Paul Whitcher and
with related crimes. The first 14 counts charged crimes that occurred at
the Driftwood Tavern in the late hours of November 18, 1994. The
remaining counts charged crimes that occurred in the early morning hours
of November 19, 1994. Defendant pled not guilty to all charges.
After a jury trial, defendant was
convicted of aggravated murder (4 counts), murder (2 counts), felony
murder (2 counts), first-degree robbery, first-degree burglary (2 counts),
and first-degree assault (2 counts). After a penalty phase proceeding,
he was sentenced to death.
Defendant assigns nine claims of error relating to
the guilt phase and five claims relating to the penalty phase of his
trial. He also contends that Oregon's death penalty statute violates the
Oregon and United States constitutions.
III. GUILT-PHASE ASSIGNMENTS OF ERROR
A. Pretrial motions
1. Defendant contends that the trial court erred in
denying his pro se motion for substitution of counsel.
Before trial, defendant informed the trial court that
his counsel was "not working out." Specifically, he complained that: he
had not yet received all police reports, his counsel took two to three
weeks to return some phone calls, his counsel should have attempted to "lower"
the indictment, and that he had filed an action against his counsel
under 42 USC § 1983 (federal civil action for deprivation of rights).
After permitting defendant to explain his reasons for moving to
substitute counsel, the trial court denied his motion. The court
explained that defendant was being well represented by qualified
attorneys and that he had not given the court sufficient grounds to
change his counsel.
Later, defendant filed a pro se motion for
substitution of counsel. Again, the trial court asked him to explain his
complaints. He asserted that there was "no harmony" between him and his
attorneys. The court then stated:
"As you might recall, you and I have discussed
this question on several occasions and on a couple of occasions I've
gone over your complaints item by item and found them not to be a
legal basis to grant your request.
"Since I see nothing new, my ruling that I made
in the past will stand and that is your motion for change of counsel
This court reviews a trial court's denial of a
criminal defendant's motion for substitution of counsel for an abuse of
discretion. State v. Langley, 314 Or 247, 258, 839 P2d 692
(1992), opin adhered to 318 Or 28, 861 P2d 1012 (1993).
A trial court, presented with a defendant's request
for substitution of court-appointed counsel, must assess the facts and
determine whether the defendant's complaints are "legitimate."
Langley, 314 Or at 257; see also State v. Davidson,
252 Or 617, 620, 451 P2d 481 (1969) ("a defendant has no right to have
another court-appointed lawyer in the absence of a legitimate complaint
concerning the one already appointed for him.").
"A 'legitimate complaint' about a court-appointed
lawyer is one that is based on an abridgement of a criminal
defendant's constitutional right to counsel. The right to counsel
requires adequate performance of an appointed lawyer's professional
assistance." Langley, 314 Or at 258 (footnote omitted).
See also Krummacher v. Gierloff, 290 Or
867, 872 n 3, 627 P2d 458 (1981) (explaining that court-appointed
counsel "cannot always be 'effective,' but they must always be
'adequate' to the task").
Defendant does not claim that the trial court failed
to make a factual assessment of the legitimacy of his complaints against
his counsel. The issue is whether his complaints were "legitimate." The
record shows that defendant did not assert facts that would have
required the trial court to allow his motion for substitution of counsel.
Rather, defendant's complaints indicate his general frustration with the
pretrial process. For example, when pressed for specificity regarding
his motion, defendant claimed that he "saw the bail hearing as just a
chance for the district attorney to trump up charges to give witnesses
practice testimony," and that he "was ignorant of these legal
proceedings." Our review of the record does not reveal any other
substantive basis for defendant's complaint about his counsel. We hold
that the trial court did not abuse its discretion in denying defendant's
motion for substitution of counsel.
2. Defendant next contends that the trial court erred
by denying his motion to sever the counts related to the separate
homicides in the indictment.
Before trial, defendant moved to sever the first 14
counts of the indictment, arguing that the state had not met the
statutory requirements for joinder of the charges. He further argued
that, even if those requirements had been met, he would suffer
substantial prejudice if the counts were not severed.
The trial court reasoned:
provides that two or more offenses may be charged in the same
accusatory instrument if they are alleged to have been committed by
the same person and are either of the same or similar character or
are based on the same act or transaction. The allegations here meet
both tests. All of these cases are either connected violent crimes
of the same or similar character. They also are all part of the same
act or transaction. The evidence in one under any standard would be
admissible in trial in the other. In fact, it would be very
difficult to understand the evidence in one of these crimes without
hearing all of the evidence in the other crime. So the motion to
sever is denied."
On review, defendant notes that the two homicides
occurred on "separate calendar days," and argues that it "was
unnecessary to refer to both homicides to tell the story of either
homicide separately." He argues that substantial prejudice resulted
from the joinder, because "the presentation of both [homicides] would
irrevocably influence the jurors as to their decision about each
Joinder of charges is governed by statute. ORS
132.560. A trial court's interpretation of a statute is reviewed for
legal error. Community Bank v. U.S. Bank, 276 Or 471, 478, 555
P2d 435 (1976). Therefore, we review a trial court's determination that
the state met the statutory requirements for joinder of charges for
legal error. We also review a trial court's determination whether the
facts stated in a defendant's motion to sever show the existence of
prejudice for legal error. State v. Miller, 327 Or 622, 629, ___
P2d ___ (1998).
In Miller, this court interpreted ORS
132.560(3) to determine what the legislature meant by the term "prejudice."
This court stated:
"The 'prejudice' standard in ORS 132.560(3)
demonstrates that the legislature intended to authorize the court to
safeguard the parties from potential injury or harm to their
interests in a fair trial. 327 Or at 627 (emphasis in
This court assesses "fairness" in this context by
"evaluating the specific interests of the parties at stake in light
of our legal traditions and the applicable rules of trial procedure[.]"
Id. The "actual or likely impairment" of a party's interest
in "a trial conducted efficiently and in accordance with all
applicable laws, including the constitutions, statutes, and rules of
procedure and evidence, and in a decision based on a dispassionate
consideration of the evidence rather than bias, emotion, or other
improper criteria * * * constitutes * * * prejudice within the
meaning of ORS 132.560(3)." Id. at 627-28.
Defendant does not support his claim of error with
arguments based on the facts in this case. Rather, he merely states that
"where the offenses are distinct in time, place and evidence, defendant
runs the risk that any adverse effect from one case will influence the
jury's consideration of the other case." Defendant essentially argues
that the jury's decision was not based on dispassionate consideration of
the evidence relating to the McDonald and Whitcher murders. We agree
with the trial court that the offenses are sufficiently similar to have
been joined, and defendant has failed to demonstrate that he was
prejudiced, within the meaning of ORS 132.560(3), by the trial court's
denial of his motion to sever. We hold that the trial court did not err
by denying defendant's motion to sever the counts in the indictment.
B. Trial motions
1. Defendant contends that the trial court erred in
overruling his objection to evidence that when he first was contacted by
the police he denied that he previously had been arrested or was on
The defense theory of the case was that defendant was
too intoxicated to act voluntarily or to form the intent necessary to
commit the acts with which he was charged. During trial, the prosecutor
informed the court that the state intended to introduce evidence that
when defendant first was contacted by the police he denied ever having
been arrested or that he had been on probation. The prosecutor explained
that the evidence was relevant to show that the defendant had not been
so intoxicated that he could not form criminal intent to commit murder.
The prosecutor stated that:
"[I]t is the State's position that it shows that
the defendant was able to process the information that he was able
to in fact lie about it to try and protect himself and to get out of
the clutches of the police, and it is therefore relevant."
Defense counsel objected to the evidence on the
ground that it would be "unduly prejudicial" citing Oregon Evidence Code
(OEC) 403. The trial court overruled the objection and allowed the
state to introduce evidence of defendant's denials, but the court ruled
that no details about the arrests or probation would be admitted.
On review, defendant argues that the evidence was "overwhelmingly
prejudicial." We review a trial court's decision to admit evidence
challenged under OEC 403 for an abuse of discretion. State v. Moore,
324 Or 396, 407-08, 927 P2d 1073 (1996).
The trial court considered the use for
which the evidence was offered and limited its scope to the denials
themselves. The trial court restricted the state from eliciting the
details of arrest, conviction, or probation and the state properly
restricted its questions to the denials. There is little reason to
believe that evidence's probative value was outweighed by the danger of
unfair prejudice. We conclude that that evidence had persuasive power to
establish a fact of consequence, i.e., whether defendant was able
to form criminal intent near the time of the homicides. See
State v. Lyons, 324 Or 256, 280, 924 P2d 802 (1996) ("'Unfair
prejudice' describes a situation in which the preferences of the trier
of fact are affected by reasons essentially unrelated to the persuasive
power of the evidence to establish a fact of consequence."). We hold
that the trial court did not abuse its discretion in overruling
defendant's objection to evidence that when he first was contacted by
the police he had denied that he previously had been arrested or
2. Defendant next contends that the trial court erred
in denying his motions for judgments of acquittal on Counts 1, 5, 10,
and 11 of the indictment.
Count 1 charged defendant with aggravated felony
murder on the theory that he intentionally murdered McDonald in the
course and furtherance of attempting to commit and committing first-degree
burglary at the Driftwood Tavern. Count 5 charged felony murder, again
with first-degree burglary at the tavern as the underlying felony. Count
10 charged first degree burglary on the theory that defendant entered
the tavern with intent to assault McDonald. Finally, Count 11 alleged
that defendant committed first-degree burglary by unlawfully and
knowingly entering and remaining in the tavern with a dangerous weapon
with intent to assault McDonald. All four counts were premised on the
state's theory that the bartender had excluded defendant from the tavern
before defendant reentered and attacked McDonald.
Following the state's case-in-chief, defense counsel
moved for a judgment of acquittal on all counts. As to the four counts
involving burglary, defense counsel argued that the state had presented
insufficient evidence from which the jury could find that the bartender
had excluded defendant from the tavern and, therefore, that no burglary
had been committed as a matter of law. The trial court ruled:
"[W]hat I'm going to rule is that it's a fact
question as far as whether there was an exclusion or simply a
salutation. I paid very close attention to what everybody said about
voice inflection, and particularly the bartender, and he clearly
said that it was his attention [sic] to exclude them but that
he didn't use those words. He thought that they knew that they
couldn't come back. Because I originally had some real question when
I heard the words used and heard Ms. Oyamada's recitation of that.
But I'm going to submit that fact question. So I deny your special
motion on that basis."
On review, defendant argues that the state presented
insufficient evidence from which the jury could find that defendant had
been excluded from the Driftwood Tavern and, therefore, the trial court
erred in denying his motions for judgments of acquittal on Counts 1, 5,
10, and 11.
"We review challenges to the sufficiency of
evidence solely to determine whether, after viewing the evidence in
the light most favorable to the state, any rational trier of fact
could have found the essential elements of the crime proved beyond a
reasonable doubt. Our decision is not whether we believe defendant
is guilty beyond a reasonable doubt, but whether the evidence is
sufficient for the jury to so find." State v. Rose, 311 Or
274, 281, 810 P2d 839 (1991).
ORS 164.225(1) provides:
"A person commits the crime of burglary in the
first degree if the person violates ORS 164.215 and the building is
a dwelling, or if in effecting entry or while in a building or in
immediate flight therefrom the person:
"(a) Is armed with a burglar's tool as
defined in ORS 164.235 or a deadly weapon; or
"(b) Causes or attempts to cause physical
injury to any person; or
"(c) Uses or threatens to use a dangerous
ORS 164.215(1) provides:
"Except as otherwise provided in ORS 164.255, a
person commits the crime of burglary in the second degree if the
person enters or remains unlawfully in a building with intent
to commit a crime therein." (Emphasis added).
ORS 164.205 provides in part:
"As used in ORS 164.205 to 164.270, except as the
context requires otherwise:
"* * * * *
"(3) 'Enter or remain unlawfully' means:
"(a) To enter or remain in
or upon premises when the premises, at the time of such
entry or remaining, are not open to the public or when
the entrant is not otherwise licensed or privileged to do so[.]"
Several witnesses testified about the circumstances
surrounding the bartender's exclusion of defendant from the tavern.
Debra Oyamada testified that as defendant and Whitcher were heading
toward the door, the bartender said: "Good night, you guys, and he was
pointing at the door. Good night, you guys." Defendant and Whitcher then
exited the Driftwood. Oyamada testified that "between five and ten
minutes" after the time defendant and Whitcher walked out the door,
defendant ran back inside the tavern and attacked McDonald.
Williams Jones, a tavern patron, testified:
"A: I looked up just as [defendant and Whitcher]
were going out because I heard Pat [Disciascio, the bartender]
yelling, you know, good night, you know, get out.
"Q: Did you see him pointing to the door?
John Earp, another tavern patron, testified:
"Q: All right. When -- as a result of that
exchange [between McDonald and defendant], did you hear Pat
Disciascio say something to the young man?
"A: Absolutely. He pointed at the door and said,
Good night fellas. And it was pretty clear to me that he was --
"* * * * *
"Q: When you heard Mr. Disciascio say that, and
you indicated that he pointed with one of his arms, were you able to
see where his arm was pointed?
"A: He was pointing at the door.
"Q: Is there any doubt in your mind what the
intent was that Mr. Disciascio had in your mind what he was telling
"A: To leave."
On cross-examination, Earp testified:
"Q: Okay. Now, you testified on direct
examination that you were able to hear the bartender say good night,
boys, and point toward the door, is that right, sir?
"* * * * *
"Q: Anything else but good night, boys?
"A: I think he just said good night and pointed
at the door --
"Q: Good night.
"A: -- in a very affirmative way."
Pat Disciascio, the bartender, testified:
"Q: Did you hear -- were you watching this as it
"A: Well, I became concerned because I heard --
the talking was louder --
"* * * * *
"Q: Did you direct these men to leave?
"A: I did.
"Q: How did you do that?
"A: I asked them -- they were -- I just said keep
it going, I'd like you to leave.
"Q: All right. Do you remember precisely the
words you used in directing them out the door?
"A: Something like it's time to leave, let's keep
it going, it's time to leave.
"Q: And did they respond to you?
On cross-examination, Disciascio testified:
"Q: * * * Okay. When you went to say good night
boys they were already headed out the door, is that right, sir?
"A: Well, no, they'd stopped.
"Q: Okay. Where did they stop at?
"A: To talk to Debbie Oyamada.
"Q: Okay. After their contact with Ms. Oyamada,
isn't it true that they were in the process of leaving -- going
toward the door when you assisted them out by -
"Q: -- saying keep going, boys?
"Q: Now sir, you never told them they couldn't
come back in, did you, sir?
"A: No, I didn't.
"A: I just assumed they wouldn't."
Although the witnesses provided slightly different
versions of the bartender's words and conduct, their testimony is
consistent about his directions to defendant and Whitcher to leave the
tavern. Although defendant claims that "there was no fixed time that he
was not supposed to re-enter" the tavern that night, we conclude that a
rational jury could have found that the bartender intended to and did
exclude defendant and Whitcher from the tavern at least for the
remainder of that evening. Further, we find that the Jones and Earp
testimony provided evidence from which a rational juror could find that
a reasonable person would understand the bartender's words and conduct
as an exclusion.
Additionally, there is evidence in the record from
which a rational juror could find that defendant understood that the
bartender intended to and did exclude them from the tavern for at least
five to ten minutes. Brian Callicott was walking past the tavern on the
evening of November 18, 1994. He testified that he saw two men, one in a
leather jacket and the other in a plaid shirt, outside the tavern's
door. He testified:
"A: Well, the one in the leather jacket kind of
stood back as the other one with the plaid shirt went into the door
and opened it, and then he turned around, you know, so I was
standing there at this point, I mean, was kind of moving. But he
opened the front door, and then he noticed that his friend was
standing back, he didn't go with him.
"Q: So what happened?
"A: Well, he closed the door. He let the door
close, and came back. He was saying something to his friend. I'm not
sure exactly what he said at first and then, I mean, and then he
said, if we do this -- something to this effect, if we do this, you
know, we're going to go to jail. And that was --
"* * * * *
"Q: I'm sorry. Who was it who said it?
"A: The guy in the plaid shirt.
"Q: All right. And he was saying -- who was this
"A: To his friend with the leather jacket on.
"* * * * *
"Q: And you said you heard him speak. You heard
him say the words about if we do this we're going to jail?
"A: Yeah, it was clear." (Emphasis added.)
We conclude that a rational jury accepting reasonable
inferences could have found that, when the bartender said, "Good night,
fellows," (or words to that effect) and pointed to the door, a
reasonable person would have understood that he was not "licensed or
privileged" to return to the tavern at the time that he did so. Thus,
the evidence was sufficient to allow the jury to find defendant guilty
of first degree burglary beyond a reasonable doubt. Defendant does not
explain why, as a matter of law, a reasonable person could not have
understood the bartender's words and conduct to be an exclusion from the
tavern for at least five to ten minutes, if not for the entire evening.
We hold that the trial court did not err in denying defendant's motions
for judgments of acquittal on Counts 1, 5, 10, and 11 of the indictment.
3. Defendant next contends that the trial court erred
by instructing the jury during its deliberations as to the definitions
of "entering and remaining unlawfully," and about who had authority to
exercise lawful control of the tavern premises.
At trial, the state requested Uniform Criminal Jury
Instructions that define the phrases "enter or remain unlawfully" as
used in ORS 164.205(3) and "person in charge" as used in ORS 164.205(5).
However, the trial court inadvertently neglected to instruct the jury on
those definitions. After retiring to deliberate, the jury sent a note to
the trial court asking:
"What constitutes being asked to leave a bar and
what authority does the bartender have? What does he have to 'do or
say -- legally' to kick someone out."
Over defendant's objection, the court provided
written copies of Uniform Criminal Jury Instructions on the phrases "enter
or remain unlawfully" and "person in charge" to the jury.
On review, defendant does not argue
that the additional instructions were incorrect.
He complains only about when they were given. Defendant contends
that "to read these instruction at that time gave undue weight to these
instructions, as opposed to the previous ones." Defendant further
contends that, by giving the additional instructions, the trial court
gave undue attention to the state's theory of guilt, thus buttressing
the state's case at a critical time for the jury. The state responds
that the court did not abuse its discretion in providing the definitions,
that it would have been error not to have given the definitions, and
that the trial court properly instructed the jury to consider all of the
instructions as a whole when it instructed the jury on the definitions.
We review a trial court's ruling regarding jury
reinstructions for an abuse of discretion. State v. Flett, 234 Or
124, 129, 380 P2d 634 (1963). For an instruction to constitute
reversible error, it must have prejudiced the aggrieved party when the
instructions are considered as a whole. Martini v. Beaverton Ins.
Agency, Inc., 314 Or 200, 211, 838 P2d 1061 (1992). This court has
held that "cases should not be reversed upon instructions, despite
technical imperfections, unless the appellate court can fairly say that
the instruction probably created an erroneous impression of the law in
the minds of the jurymen which affected the outcome of the case."
Waterway Terminals v. P. S. Lord, 256 Or 361, 370, 474 P2d 309
When the court initially instructed
the jury, it told the jury not "to give any instruction undue emphasis."
It also instructed the jury that it was "to consider all of the
instructions as a whole." The court repeated that admonition when it
gave the additional instructions about which defendant complains in this
assignment. Defendant has not demonstrated that the timing of the
additional instructions prejudiced him when the instructions are
considered as a whole. Nor has defendant shown that the additional
instructions probably created an erroneous impression of the law. We
hold that the trial court did not abuse its discretion in its timing of
the jury instructions.
4. Defendant contends that the trial court erred by
accepting verdicts on Counts 15 and 22.
Count 15 of the indictment alleges that defendant
"did unlawfully and intentionally commit and
attempt to commit the crime of Robbery in the First Degree and in
the course of and in the furtherance of said crime which the said
defendant was committing and attempting to commit, the said
defendant personally and intentionally did cause the death of * * *
PAUL R WHITCHER * * * by stabbing him[.]"
Count 22 alleges that defendant
"did unlawfully and knowingly use physical force
upon Paul R Whitcher, and did use a dangerous weapon, to-wit: a
knife, while in the course of committing and attempting to commit,
theft of property, to-wit: a wallet, with the intent of preventing
and overcoming resistance to the said defendant's taking of the said
The jury returned verdicts of guilty on Counts 15 and
22. On being polled orally by the trial court, the jurors indicated that
all 12 had voted "guilty" on Count 15 (aggravated felony murder), but
one juror indicated that she had voted "not guilty" on Count 22 (robbery).
Defendant argues that those verdicts are "logically
inconsistent," because defendant "simply could not have been guilty of
felony murder based on a robbery verdict, if he was not guilty of
robbery." The state responds that the fact that the juror voted not
guilty on the completed charge of first-degree robbery is not
inconsistent with a vote of guilty on the aggravated murder charge,
which may be committed in the course of committing or attempting
to commit first-degree robbery.
Whether verdicts are consistent is a
question of law, thus the trial court's acceptance of the verdicts is
reviewed for an error of law. See State v. Mendez, 308 Or
9, 12-14, 774 P2d 1082 (1989) (implicitly applying that standard).
If verdicts can be harmonized, they are not necessarily inconsistent.
Id. at 14.
The fact that a juror voted "not
guilty" on the first- degree robbery count and "guilty" on the
aggravated felony murder count based on that robbery count does not
necessarily make those verdicts inconsistent. First-degree robbery
requires the jury to find that the defendant committed the completed
robbery. In contrast, aggravated felony murder (based on first-degree
robbery in this case) does not require the jury to find that the
defendant completed the robbery. A conviction for aggravated felony
murder may be based on a jury's finding that the murder was committed in
the course of or in furtherance of attempting to commit a listed
felony (first-degree robbery in this case). ORS 163.115(1)(b). We
conclude that the verdicts are not "logically inconsistent." We hold
that the trial court did not err in accepting verdicts on Counts 15 and
IV. PENALTY-PHASE ASSIGNMENTS OF ERROR
1. Defendant contends that the trial
court erred by admitting evidence from his juvenile court record during
the penalty-phase trial.
Before trial, the court sealed a file containing
defendant's juvenile court records and social history. After defendant's
convictions, the state sought to have those materials released to the
parties for use during the penalty-phase proceedings. Defendant objected,
contending the materials were not subject to disclosure for that
purpose. Defendant relied on ORS 419A.255, a statute that makes such
records privileged. The trial court ruled:
"And I'm going to release, having reviewed the
entire juvenile [file] and finding that everything in it could
arguably be relevant or to lead [to] relevant information and
admissible information in this case, I'm going to release it to both
"* * * * *
"So far as any documents might be received
into evidence, we'll make a document by document decision as to
whether those should be sealed at the conclusion of the trial."
On review, defendant argues that the admission
of evidence from his juvenile court record violated his due process
rights under the Fifth and Fourteenth Amendments to the United States
Constitution and, therefore, reversal is required.
At trial, defendant did not object to
the admission of any evidence that may have been derived from
defendant's juvenile court records. Thus, he
has not preserved the error he claims on review and, accordingly, this
court will not address it. See State v. Montez, 324 Or
343, 356, 927 P2d 64 (1996) (citing State v. Isom, 313 Or 391,
406, 837 P2d 491 (1992) (an objection on one ground is not sufficient to
preserve some other objection)). We hold that the trial court did not
err in the manner argued by defendant.
2. Defendant next contends that the trial court erred
in the penalty-phase proceeding by admitting state's Exhibit 85, a
letter written by defendant. The letter describes defendant's plan to
"hit [a guard] in the gut a few times * * * 'til he went out or stopped
moving" and then to "break window [sic]" and escape from jail.
Defendant objected, arguing that under OEC 403, the prejudicial effect
of the letter outweighed its probative value. The trial court overruled
defendant's objection, stating:
"I have to feel that on this issue of the death
sentence it certainly is much more probative than prejudicial. It
goes to the issue of future dangerousness which is one -- directly,
which is the one of the questions that will be put to the jury, and
I have to deny the objection."
On review, defendant argues that the letter "suggest[s]
to the jury that defendant is a person of bad character" and that the
letter "suggests bad actions or bad character evidence which * * * [does]
not suggest future dangerousness." A trial court's ruling to admit
evidence challenged under OEC 403 is reviewed for an abuse of discretion.
Moore, 324 Or at 408.
We conclude that the letter, which
detailed a plan to attack a guard and escape from jail, was probative of
defendant's future dangerousness, a penalty-phase issue. ORS
163.150(1)(b)(B). We hold that the trial court
did not abuse its discretion in admitting state's Exhibit 85.
3. Defendant next contends that the trial court erred
in denying his motion for a mistrial, based on a witness's apparently
inadvertent reference to an alleged sex abuse charge against defendant.
During the penalty-phase, an intake worker from the
State Office for Services to Children and Families stated that in 1985
her office had difficulty providing residential placement services for
defendant because of "an allegation of a sex abuse issue." Defendant
moved for a mistrial.
The trial court denied the motion and instructed the
jury that it should "disregard the statement completely," because there
was "nothing to sustain any allegation of sex abuse against" defendant
and that the witness's reference to sex abuse was "unfortunate." During
the next recess, defendant renewed his motion for a mistrial. The trial
court again denied the motion on the ground that, although the reference
was an error, the court's jury instructions allayed any prejudice.
Defendant argues that the rulings violated his right
to a fair trial under the Fifth and Fourteenth Amendments to the United
States Constitution. We review a denial of a motion for a mistrial for
an abuse of discretion. See State v. Wright, 323 Or 8, 12,
913 P2d 321 (1996) (deferring to the trial judge's discretion in denying
a motion for a mistrial).
The record shows that the prosecutor had instructed
the witness not to mention the sex abuse allegation against defendant
and that the witness's statement is inadvertent. Further, the trial
court immediately gave a curative instruction. Jurors are presumed to
follow a trial court's instructions. State v. Walton, 311 Or 223,
250, 809 P2d 81 (1991) (citing State v. Smith, 310 Or 1, 26, 791
P2d 836 (1990)). Defendant has not shown that the jurors who served in
this case failed to follow the court's instructions. We find no
prejudice to defendant. We hold that the trial court did not abuse its
discretion in denying defendant's motion for a mistrial.
3. Defendant next contends that the trial court erred
in denying his motion to strike a portion of the prosecutor's
penalty-phase rebuttal argument.
During the penalty trial, defendant testified to the
"Let me start by -- when I was first arrested, I
talked to [defense counsel] and I told her that I just wanted to plead
guilty. * * * I did not want a trial. That man wanted the trial.
"* * * * *
"A lot of things in this case were manipulated and
promoted and pumped up. The families, they were told a lot of lies by
that man for political gain or personal, I don't know. If there would
have been some kind of reasonable charges or reasonable plea, something
I could legally plead guilty to and get this all over with, I would have
* * *."
In his closing rebuttal argument, the prosecutor
"As to his personal attacks against me, I want
you to think about this, I want you to consider them, I want you to
use your opportunity to consider them in assessing the probability
for his committing violent acts in the future."
Defense counsel moved to strike that statement on
ground that it was "improper." The trial court denied the motion.
On review, defendant argues that, "Clearly, the
prosecutor misconstrued defendant's statement, and apparently his
accompanying gestures, for his own benefit." He further argues that the
prosecutor's statements prevented defendant from having "a fair
consideration by the jury." The state responds that the prosecutor's
statement was relevant to the jury's consideration of defendant's future
dangerousness. ORS 163.150(1)(b)(B). Further, the state argues that
defendant's telling the jury that the prosecutor had lied to the victims'
families and had pursued the trial for political or personal gain did
constitute a "personal attack." We review a trial court's ruling not to
strike a portion of the prosecutor's argument for an abuse of discretion.
Smith, 310 Or at 24. A trial judge may abuse his or her
discretion if the denial violated a defendant's right to a fair trial.
In Smith, this court stated:
"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. These same principles apply to the determination of
whether a defendant in a capital case is entitled to a new penalty
phase." Id. (citation omitted).
In Wright, 323 Or at 12, this court
considered whether the trial court erred in denying a motion for
mistrial after a witness "glared" at the defendant. The trial judge
stated that, in his observation of the incident, "it wasn't of
sufficient magnitude to cause a mistrial or incite the jury[.]" Id.
On review, this court reasoned that the case "presents a classic example
of why this court defers to a trial court's assessment of the need for a
mistrial in most circumstances: The trial judge is in the best position
to assess the impact of the * * * incident and to select the means (if
any) necessary to correct any problem resulting from it." Id. (citations
The reasoning in Wright applies
to a motion to strike as well. A trial transcript does not capture body
language, voice inflection, or other subtle nonverbal cues that are part
of direct communication. Although in this case, unlike in Wright,
the trial judge did not explain on the record why he denied defendant's
motion, we infer that the judge found that the prosecutor's remarks were
Our review of the record provides no clue as to
whether defendant's tone of voice, facial expression, or gestures, if
any, accompanying his statements, created an implicit threat that would
be relevant to his future dangerousness. That is why this court defers
to the trial judge's discretion. Here, we find no abuse of discretion by
the trial judge's denial of defendant's motion to strike.
At a minimum, defendant's allocution, read in context,
indicates that defendant felt that the prosecutor had lied and had
forced him to trial against his will. Defendant communicated those
assertions to the jury in a manner that demonstrated some anger that a
rational trier of fact could view to be a "threat" or a "personal attack."
We conclude that the prosecutor's statements did not deny defendant his
right to a fair trial, and we hold that the trial court did not abuse
its discretion in denying defendant's motion to strike.
5. Finally, defendant contends that the trial court
erred in overruling his demurrer attacking the constitutionality of
Oregon's death-penalty scheme. Defendant recognizes that his challenges
to Oregon's death penalty have been rejected by this court in previous
death penalty appeals. See, e.g., State v. Guzek,
310 Or 299, 797 P2d 1031 (1990); State v. Montez, 309 Or 564, 789
P2d 1352 (1990); State v. Wagner, 309 Or 5, 786 P2d 93 (1990). We
decline to reconsider these issues. See State v. Barone,
328 Or 68, 98, 963 P2d 667 (1998) (declining to revisit issues
previously decided); State v. Hayward, 327 Or 397, 414, 963 P2d
667 (1998) (same). We hold that the trial court did not err in
overruling defendant's demurrer.
We have considered each of defendant's assignments of
error and every argument made in support thereof. Any assignment of
error or argument not discussed in this opinion either has been
considered by this court previously and resolved against defendant or is
not well taken. We find no error.
The judgment of conviction and the sentence of death