Jeffrey Dale Tiner
Lane County - Oregon
Sentenced to death: 11/17/2000
Tiner was convicted of killing James Salmu, who invited Tiner's
girlfriend and her children to share his Springfield home while they
looked for a rental. Salmu was beaten, stabbed and shot after a pizza
party at the house in 1993. His body was found in the woods 20 months
after he disappeared.
Tiner's girlfriend, Karlyn Eklof, 35, was convicted of aggravated
murder and sentenced to life in prison for her role in Salmu's death.
Prosecutors argued that Eklof incited Tiner by falsely accusing Salmu of
being a child molester.
Interesting fact: Tiner was obsessed with avenging child abuse and
claimed he had killed a molester during the 10 years he spent in
California's Folsom Prison.
Status: Death Row.
Jeffrey Dale Tiner
May 18, 2006
IN THE SUPREME COURT OF THE STATE OF
STATE OF OREGON, Plaintiff on Review,
JEFFREY DALE TINER, Defendant on Review.
(CC 10-95-11814; SC S47643)
On automatic and direct review of the
judgment of convictions and sentences of death imposed by the Circuit
Court of Lane County.
Darryl L. Larson, Judge.
Argued and submitted May 6, 2005.
Mary M. Reese, Bend, argued the cause and filed the
briefs for defendant on review.
Janet A. Metcalf, Assistant Attorney General, Salem,
argued the cause and filed the briefs for plaintiff on review. With her
on the briefs were Hardy Myers, Attorney General, Mary H. Williams,
Solicitor General, and Kathleen M. Cegla and Denis M. Vannier, Assistant
Before Carson, Chief Justice,* and Gillette, Durham,
Riggs, De Muniz,** and Balmer, JJ.***
The judgment of conviction and the sentences,
including the sentences of death, are affirmed in part and reversed in
part. The case is remanded to the circuit court for further proceedings.
*Chief Justice when this case was argued.
**Chief Justice when this case was decided.
***Kistler, J., did not participate in the
consideration or decision of this case.
This case is before us on automatic and direct appeal
of defendant's judgment of conviction and sentences of death. We have
considered defendant's assignments of error and conclude that the trial
court erred only in the form of the judgment. We therefore affirm the
convictions and the sentences, but reverse in part and remand this case
to the trial court for the limited purpose of correcting the form of the
Because the jury found defendant
guilty, we state the facts in the light most favorable to the state.
State v. Thompson, 328 Or 248, 250, 971
P2d 879, cert den, 527 US 1042 (1999).
With permission from his California
parole officer, defendant traveled to Springfield to visit Eklof in
March 1993. Eklof and her three children resided with victim, who had
invited them to live with him.
After a party at victim's house,
defendant and Eklof told victim that they wanted him to leave his house
that night. Eklof and defendant argued with and then assaulted victim.
By assaulting victim, defendant risked revocation of his parole. Also,
in violation of his parole conditions, defendant had acquired a handgun.
Defendant killed victim with Elkof's assistance. He disposed of the body
in a remote forested area of the Cascade Range.
Despite changes that Eklof and defendant made to the
interior of the house after victim's disappearance, such as painting the
walls and replacing the carpet, the police found traces of blood in the
house. Defendant later boasted to others that he had killed victim and
detailed how he had disposed of victim's body. Meanwhile, Eklof
participated in four videotaped interviews with police concerning the
murder. In May 1994, police arrested Eklof for victim's murder. In
November 1994, a mushroom hunter found victim's remains near a logging
road in the Cascade Range.
In mid-1994, defendant began serving
an unrelated sentence in a Nevada prison. There, he associated with
members of a white supremacist gang, the Aryan Warriors. Defendant's
upper body featured various tattoos suggesting sympathy for white
supremacy, including a swastika, a woodpecker, and the words "White" and
"Pride." Defendant also used a Nazi symbol, SS lightning bolts, in a
letter to his wife.
In December 1995, the State of Oregon indicted
defendant for aggravated murder and other crimes relating to the murder
of the victim. In August 1996, while still serving his Nevada sentence,
defendant was transferred to Oregon. The trial court initially scheduled
trial for November 1996, but later granted defendant's motion to
postpone the trial until June 10, 1997.
On June 10, 1997, the day set for
trial, the state received an adverse ruling concerning the admissibility
of Eklof's videotaped statements. The trial court determined that only
some of Eklof's statements were admissible as evidence, although the
state argued that all four videotapes of her interviews should be
admitted in their entirety. In light of the ruling, the state informed
the court that it intended to appeal.
On July 7, 1997, the state filed its
notice of appeal. There followed a year and a half devoted to
settling the record on which the appeal would be based. A few days
before the state's opening brief was due, the United States Supreme
Court issued an opinion that caused the state's appellate attorney to
reconsider whether to proceed with the appeal. See Lilly v.
Virginia, 527 US 116, 119 S Ct 1887, 144 L Ed 2d 117 (1999) (plurality
opinion regarding Sixth Amendment confrontation clause and hearsay
exception against penal interest). On July 13, 1999, a little more than
two years after filing the notice of appeal, the state moved to dismiss
the appeal. The Court of Appeals granted the motion and issued an
The trial court set a new trial date of April 4,
2000. Late in 1999, defendant moved to dismiss the case for lack of a
speedy trial. The trial court issued a written order, supported by
findings, rejecting defendant's motion. On April 4, 2000, trial began. A
jury found defendant guilty of aggravated murder, among other crimes,
and imposed a sentence of death.
Defendant raises numerous issues regarding alleged
errors in his trial. We address his constitutional arguments regarding
the delays in bringing him to trial, his arguments that the state
improperly inspected and photographed his tattoos, and his arguments
that the trial court should not have admitted evidence during the
penalty phase of his gang affiliations while in prison in Nevada. We
have considered defendant's other assignments of error not discussed
here, but, based on our review, we conclude that no error occurred as
claimed with respect to any of them, except as to the form of the
II. TRIAL "WITHOUT DELAY"
Article I, section 10, of the Oregon
Constitution provides that "[n]o court shall be secret, but justice
shall be administered, openly and without purchase, completely and
without delay." In State v. Harberts, 331 Or 72, 11 P3d 641
(2000), this court explained that, when examining a speedy-trial
question, this court considers the delay and prejudice to the defendant.
First, this court examines the length of the delay and the reasons for
the delay. Id. at 84. Second, the court must assess prejudice to
the defendant in light of the interests that the speedy-trial
requirement was designed to protect: (1) to prevent oppressive pretrial
incarceration; (2) to minimize the anxiety and concern of the criminally
accused; (3) and to limit the possibility that the defense will be
impaired. Id. at 85 (quoting Barker v. Wingo, 407 US 514,
532, 92 S Ct 2182, 33 L Ed 2d 101 (1972)).
Of those, the last is the most serious,
because the inability of a defendant adequately to prepare a case skews
the fairness of the entire system. Id. In that regard, defendant
must show that the delay caused a reasonable possibility of prejudice to
the defendant's ability to prepare a defense. Id. at 86.
A. Reasons for Delay
Defendant argues, and the state concedes, that the
length of delay of more than four years between defendant's indictment
and trial is constitutionally significant. Defendant focuses on the
delay that resulted from the state's decision to appeal the trial
court's adverse ruling on admission of Eklof's videotaped statements to
Defendant argues that the state's
appeal was not justified for several reasons. First, defendant argues
that the state knew at the time that it took its appeal that the
admissibility of Eklof's statements hinged on trustworthiness and
reliability. The state had argued at Eklof's separate, earlier trial
that she was neither trustworthy nor credible. Second, defendant argues
that the state knew that its appeal, like the appeal in Harberts,
was based on a fact-intensive inquiry, which usually offers little
chance of success at the appellate level. Third, defendant points out
that the state faced a procedurally problematic appeal because it had
offered Eklof's multiple statements as a single unit. See
Pumpelly v. Reeves, 273 Or 808, 812, 543 P2d 682 (1975) (if single
offer of proof contains both admissible and inadmissible matter,
rejection of entire offer is not error).
Defendant also argues that the state
unreasonably took more than a year to settle the record before
dismissing the appeal. Finally, defendant argues that, whatever the
merits of the appeal, the state did not pursue the appeal diligently.
In response, the state argues that it was justified
in pursuing its appeal, because the admission of potentially pivotal
evidence of defendant's guilt could well depend upon the outcome of the
appeal. The state also asserts that it had a reasonable chance of
success on appeal and that it was justified in pursuing its appeal
because of the seriousness of the offense charged.
We conclude that the state's appeal in this case had
little chance of success and, more importantly, that that conclusion
should have been obvious to the state's attorneys from the outset of the
appeal. At trial, the state insisted that all Eklof's statements must be
admitted into evidence and did not make separate offers of evidence. It
was all or nothing, according to the state. However, as defendant notes,
it is beyond dispute that some of Eklof's statements were inadmissible.
This court long has held that, when a single offer of proof contains
admissible and inadmissible evidence, the trial court does not err if it
rejects the entire offer. See Pumpelly, 273 Or at 812 (so
stating). We therefore conclude that the state has offered little
justification for the delay.
B. Prejudice to Defendant
We turn to a determination of what, if any, prejudice
befell defendant as a result of that delay. Defendant may establish
prejudice in three ways: (1) the damage arising from lengthy pretrial
incarceration; (2) the anxiety and public suspicion resulting from
public accusation of a crime; and (3) the impairment of the defense.
Harberts, 331 Or at 93. Defendant asserts that he suffered all three
forms of prejudice due to the delay that the state caused.
In particular, defendant argues that the passage of
time affected his ability to attack the state's proof beyond a
reasonable doubt in the following ways: (1) Eklof, originally
unavailable as a witness because of her asserted right against self-incrimination,
completed her trial and appeal, and the state thus gained her as an
important witness; (2) a case decided during pendency of appeal,
State v. Goree, 151 Or App 621, 950 P2d 919 (1997), rev den,
327 Or 123 (1998), changed certain rules of evidence and, as a result,
the trial court admitted previously suppressed evidence of a telephone
conversation between Eklof and defendant; (3) a witness died who might
have testified that a gun sold to Eklof (and transferred to defendant)
was of a different caliber than the weapon that had killed victim; and
(4) witnesses could have testified that defendant had not been involved
with prison gangs in Nevada. The first two events merely were fortuitous
and do not demonstrate that the passage of time undermined the defense.
We need not address them further.
The loss of witnesses is a more
serious question. As noted, those witnesses allegedly included (1) a
witness who would testify that the gun that defendant obtained from
Eklof was a different caliber than the one used in the murder; and (2)
other witnesses, specifically two Nevada prison guards, once available
to refute defendant's association with white supremacist prison gangs,
could not be located for the April 2000 trial.
The value of the missing witnesses was modest, at
best. As the state points out, the defense never located the gun-sale
witness. The state also asserts that other witnesses were available to
testify as to defendant's prison associations and that the two that
defendant cited would have provided only cumulative evidence.
We agree with the state that the loss
of the missing witnesses did not cause a reasonable possibility of
prejudice to defendant's ability to prepare a defense. The gun-sale
witness's potential testimony was speculative. The defense never located
him and, above all, never determined what he might have had to say. The
substance of the prison guards' testimony was available from other
witnesses. For example, a retired Nevada prison chaplain testified that
defendant had not caused problems and had associated with inmates who
avoided trouble. He stated that defendant "was never any particular
problem. He was kind of a loner. Just, you know, basically kept to
himself and kept out of trouble."
In our view, the state exercised poor judgment in
pursuing its appeal; however, we conclude that defendant did not
demonstrate that the delay significantly prejudiced the defense of this
case. We therefore reject defendant's argument that the case should be
dismissed because the state did not afford him a trial "without delay"
under Article I, section 10, of the Oregon Constitution.
We also reject defendant's argument that the state
violated his right to a speedy trial under the Sixth Amendment to the
United States Constitution. In addition to the elements discussed above
pertaining to defendant's state constitutional claim of lack of speedy
trial, defendant acknowledges that a federal claim requires proof of one
more factor, namely, that defendant asserted his right to speedy trial.
See Barker, 407 US at 530 (identifying four factors for
federal speedy-trial claim: length of delay, reason for delay,
defendant's assertion of right, and prejudice to defendant). Here, we
conclude that defendant did not assert his right to a speedy trial in
timely fashion and thus failed to raise that issue under the Sixth
III. INSPECTION AND
PHOTOGRAPHY OF DEFENDANT'S TATTOOS
Defendant argues that the trial court
erred when it issued an order ex parte authorizing the state to
photograph tattoos located on defendant's upper body and erred when it
permitted the state to use those photographs at trial.
In September 1995, defendant was brought to Oregon as
a possible witness in Eklof's trial. While in jail, the state informed
defendant that it wanted to take pictures of defendant's tattoos.
Defendant initially resisted but, after the state informed him that he
had no choice, acquiesced to having photographs taken of the tattoos on
his upper body. Those photographs were not used at defendant's trial.
In May 1997, the state sought an ex
parte order permitting the state again to photograph defendant's
tattoos. The application was based on a police detective's affidavit.
According to the affidavit, the state wanted an expert to examine
defendant's tattoos to determine his affiliation with a white-supremacist
gang, in connection with the penalty-phase issue of future dangerousness.
See ORS 163.150(1)(b)(B) (in penalty phase of capital case, jury
must consider "probability that the defendant would commit criminal acts
of violence that would constitute a continuing threat to society").
The state had contacted the chief investigator of the
Nevada Department of Prisons, Swann, who previously had testified as an
expert on the subject of prison gangs and who was acquainted with
defendant from his time in prison in Nevada. Swann indicated, according
to the affidavit, that prisoners affiliated with those gangs display
tattoos specific to those gangs. In addition, according to Swann, the
tattoos may indicate the bearer's criminal history and rank within a
The detective had provided Swann with the 1995
photographs of defendant's upper body, but the photographs had provided
inadequate detail of defendant's tattoos. The detective had requested
defendant's cooperation in photographing his tattoos again, but
defendant refused, telling the detective that he would have to obtain a
court order. The court granted the order, and the state thereafter
obtained new photographs of defendant's upper body. It was this second
set of photographs that were admitted into evidence at trial.
Shortly after the state had taken the
photographs, defendant's counsel filed an objection and requested a
hearing. In particular, defense counsel objected to the ex parte
nature of the order, arguing that no exigency existed. The state
responded that it did not need an order to photograph defendant while in
custody. The trial court defended its issuance of the order, observing
that it was in the nature of a search warrant and that defendant would
have an opportunity to challenge the state's use of the photographs as
Closer to the date of trial, defendant moved to
suppress any unlawfully seized evidence, including the photographs of
the tattoos, under his state and federal constitutional rights against
unreasonable searches and seizures, and based on the argument that
displaying the tattoos to the jury would be unduly prejudicial to him.
The state countered that defendant had no privacy interest in his
tattoos, particularly when he was in the state's custody. After a
hearing, the trial court concluded that the state had the authority to
photograph defendant's body while he was in custody.
During the guilt phase of defendant's trial, one
witness, who had been present during the party that preceded victim's
death, could not make a positive identification of defendant at trial
because, according to the witness, defendant's appearance had changed.
However, the witness stated that he would be able to recognize defendant
based on several distinct tattoos on defendant's upper body, including
the words "San Diego," a picture of a bird, and a prison tower. Over
defendant's objection, the state introduced photographs of defendant's
tattoos, which the witness recognized.
During the penalty phase, the state
moved to allow a prison-gang expert, Scott, another investigator from
the Nevada Department of Prisons, to inspect defendant's upper body so
that he personally could observe defendant's tattoos prior to testifying,
because the prior photographs had not been of sufficient quality to
permit a definitive statement about the significance of defendant's
tattoos. Scott wanted to examine one tattoo, in particular, because he
could not discern it from the photographs. The trial court permitted
Scott to observe defendant personally outside the jury's presence, with
defense counsel present.
Defendant argues that photographing defendant's
tattoos pursuant to the court's order violated his right against self-incrimination,
his right against unlawful searches and seizures, and his right to
counsel. The state disagrees and adds that the error, if any, was
Defendant first argues that, in permitting the
state's witness to view his tattoos and in admitting the photographs of
the tattoos at trial, the trial court violated his constitutional right
against self-incrimination. Article I, section 12, of the Oregon
Constitution provides that "[n]o person shall be * * * compelled in any
criminal prosecution to testify against himself."
The Fifth Amendment to the United States Constitution
provides that no "person * * * shall be compelled in any criminal case
to be a witness against himself." As defendant acknowledges, the state
and federal privileges apply to only testimonial evidence -- the
communication of a person's belief, knowledge, or state of mind -- but
not to defendant's physical characteristics, such as identity,
appearance, and physical condition. See, e.g., Pennsylvania v.
Muniz, 496 US 582, 590-92, 110 S Ct 2638, 110 L Ed 2d 528 (1990) (physical
evidence not subject to Fifth Amendment testimonial privilege); State
v. Fisher, 242 Or 419, 410 P2d 216 (1966) ("we are unable to find a
valid reason for holding that a person whose handwriting has been
secured for comparison has had his constitutional right to counsel and
privilege against self incrimination invaded.").
However, defendant contends that the tattoos in this
case carry a communicative content, which the state used to demonstrate
defendant's current beliefs and state of mind. Thus, according to
defendant, photographing defendant's tattoos and admitting those
photographs into evidence forced defendant to testify against his will.
We disagree for several reasons.
Defendant's tattoos identified him and the state used them, in part, to
help a witness identify him at trial. This court has held that a
defendant may be required to display part of his or her body on request,
and such a display does not raise an issue of self-incrimination.
State v. Cram, 176 Or 577, 582-83, 160 P2d 283 (1945). In addition,
the tattoos were preexisting documentary evidence available to the state
as part of the discovery process. See United States v. Hubbell,
530 US 27, 34-35, 120 S Ct 2037, 147 L Ed 2d 24 (2000) (Fifth Amendment
provision against self-incrimination does not apply to documentary
evidence created in past or to documents that were not created in
response to state compulsion). We therefore conclude that exposure of
defendant's tattoos did not constitute compelled self-incrimination.
C. Lawfulness of Search
Defendant argues that the state's taking photographs
of his tattoos amounted to an unlawful search. He makes that argument
under Article I, section 9, of the Oregon Constitution ([n]o law shall
violate the right of the people to be secure in their persons") and the
Fourth Amendment to the United States Constitution ("[t]he right of the
people to be secure in their persons * * * against unreasonable searches
and seizures, shall not be violated").
Under Article I, section 9, a search occurs when a
government agent intrudes into an individual's protected privacy
interest. State v. Meredith, 337 Or 299, 303-04, 96 P3d 342
(2004). By contrast, the Fourth Amendment protects a person's reasonable
expectation of privacy. Oliver v. United States, 466 US 170, 177,
104 S Ct 1735, 80 L Ed 2d 214 (1984).
Defendant argues that "[p]hotographing the skin on
defendant's upper arms and stomach constitutes a search of defendant's
person for it reveals that which is private and not knowingly exposed to
the public: the skin underlying one's normal clothing." Defendant does
not argue merely that the state needed a search warrant to photograph
his tattoos, but that the tattoos cannot be searched in any manner.
Neither the United States Constitution
nor the Oregon Constitution requires a search warrant or its equivalent
before the state may take pictures of or inspect defendant's torso
because, once defendant became a prisoner, he enjoyed few rights
regarding his privacy. See Hudson v. Palmer, 468 US 517,
526, 104 S Ct 3194, 82 L Ed 2d 393 (1984) (prisoner does not have
subjective expectation of privacy in prison cell); Bell v. Wolfish,
441 US 520, 558, 99 S Ct 1861, 60 L Ed 2d 447 (1979) (visual cavity
search of prisoner does not violate Fourth Amendment); Sterling v.
Cupp, 290 Or 611, 620, 625 P2d 123 (1981) ("Those sentenced to
prison forfeit many rights that accompany freedom.").
Once defendant was imprisoned, he
lacked the right to privacy that he enjoyed when he was not in prison.
Among the rights that he forfeited was the right to keep his personal
appearance -- including any distinguishing marks such as tattoos -- from
being known to the state. The state thus reasonably could compel
defendant to remove his shirt so that he could be photographed. The
state's directive that defendant remove his shirt so that police could
photograph his tattoos therefore was not a violation of Article I,
section 9, of the Oregon Constitution or the Fourth Amendment to the
United States Constitution.
D. Right to Counsel
Defendant next argues that the state's act of
photographing his tattoos violated his right to counsel under Article I,
section 11, of the Oregon Constitution and the Sixth Amendment to the
United States Constitution. Yet, even as he makes that argument,
defendant concedes that, "if the hearing on the state's motion was the
functional equivalent of an application for a search warrant, then
defense counsel need not be present." However, defendant argues that the
state's photographing of the defendant was a critical stage of the
proceedings, at which counsel must be present, in the same manner as
lineups and interrogations.
We disagree. The state's act of photographing
defendant constituted the act of collecting preexisting evidence. It was
not a critical stage in the prosecution, such as when identification
takes place or testimony is given. See State v. Classen,
285 Or 221, 223-24, 590 P2d 1198 (1979) (discussing concept). Collecting
and recording existing evidence does not require the presence of defense
counsel. See State v. Jones, 279 Or 55, 566 P2d 867 (1977)
(ex parte application for search warrant seeking blood sample
from defendant was permissible). The state therefore did not violate
defendant's right to counsel when the state took photographs of
defendant's torso when defense counsel was not present.
EVIDENCE OF PRISON GANG AFFILIATIONS
During the penalty phase, the state
offered testimony of an investigator from the Nevada Department of
Prisons who stated that defendant openly associated with members of the
Aryan Warriors at the Nevada prison, that defendant displayed white-supremacist
tattoos and used white-supremacist symbols in his written communications,
and that the Aryan Warriors had a history of violence.
Defendant argued that the state should
not have been permitted to present evidence of defendant's beliefs
because, among other reasons, defendant's beliefs were not relevant and,
even if they were relevant, the evidence was unfairly prejudicial. The
state responded that defendant had opened the door for such testimony
during the penalty phase and that it was entitled to rebut the testimony
of defense witnesses who testified that defendant did not associate with
problem inmates in prison.
Defendant argues that his association with a white-supremacist
gang was not relevant, because it did not rebut the testimony of defense
witnesses that defendant's associations reflected his lack of interest
in making trouble or creating problems in the prison. Under OEC 401, "relevant
evidence" includes not only evidence "having any tendency to make the
existence of any fact that is of consequence to the determination of the
action more probable," it also includes evidence that has a tendency to
make any fact "less probable than it would be without the evidence."
Here, there is no question that the evidence was
relevant. Defendant offered evidence that he was a model prisoner and
that he was not involved with troublemakers. The state responded to that
evidence with the testimony of its expert, who was familiar both with
defendant and with gangs in Nevada prisons. The state's rebuttal
evidence had some tendency to controvert defendant's evidence of his
prior conduct as a prisoner. The evidence related to defendant's gang
associations in Nevada thus was relevant to the issues at trial.
B. Unfairly Prejudicial
Defendant next argues that the admission of his white-supremacist
gang associations was unfairly prejudicial. Defendant asserts that any
inference to be drawn to the effect that he was violent because he was
seen posturing alongside gang members known for unlawful activity was
tenuous, because the state provided no evidence of defendant's
involvement with those activities.
We disagree. OEC 403 forbids admission of relevant
evidence under certain circumstances:
"Although relevant, evidence may be excluded if
its probative value is substantially outweighed by the danger of
unfair prejudice, confusion of the issues, or misleading the jury,
or by considerations of undue delay or needless presentation of
Although defendant contends that display and
discussion of his tattoos was unfairly prejudicial to him, we observe
that the evidence of his gang associations, again, was relevant to
defendant's contention that he was a model prisoner. Defendant argues,
in effect, that the state was foreclosed from challenging that assertion,
because the evidence might reflect poorly on him.
Defendant, however, chose to have himself tattooed
and to display his tattoos openly with others in prison yard in Nevada,
and the state's evidence that he had done so was calculated to refute
defendant's own evidence suggesting that he was not involved with prison
gangs. The tattoos themselves were thus closely related to the point
that the state advanced and were not submitted merely to undermine
defendant's character. We conclude that admission of that evidence was
not unfairly prejudicial.
V. ERRORS IN FORM OF
Finally, defendant asks that we
address three unpreserved errors in the trial court judgment. The state
acknowledges the errors, but argues that they do not require remand to
correct the judgment.
First, defendant argues that the trial
court erred when it failed to merge count three (intentional murder)
into count one or count two (aggravated murder). The jury convicted
defendant of aggravated murder as specified in count one and count two
of the indictment and intentional murder as specified in count three of
While the jury was deliberating during
the penalty phase, the trial court imposed a life sentence with a 25-year
minimum for the jury's conviction for intentional murder under count
three of the indictment. The state acknowledged at the time of
sentencing that the life sentence should merge into one of the
aggravated-murder counts. The final judgment, however, did not merge
count three into another count.
The state agrees that intentional
murder is a lesser-included offense of aggravated murder and that that
conviction should have merged with one of the convictions for aggravated
murder. Although the state agrees that the error is apparent on the face
of the record, the state argues that this court should not exercise its
discretion to consider it.
The state contends that the court should not exercise
its discretion, because the execution of the death sentence will render
the mistake moot. We choose to exercise our discretion, however, to
order that the trial court correct the judgment to reflect accurately
the charges and penalties for which defendant is liable. On remand, the
trial court shall merge the intentional murder count into the aggravated
Second, defendant argues that the
trial court erred when it imposed a sentence of life imprisonment for
count three, intentional murder. We need not address that issue, because
merging count three into another count will render this issue moot.
Third, defendant maintains that the trial court erred
when it entered two convictions for aggravated murder and two sentences
of death. Defendant argues that, although the state may charge a
defendant with multiple counts of aggravated murder based on the
existence of multiple aggravating factors, in the event of multiple
guilty verdicts on those counts, the trial court may enter only one
judgment of conviction for aggravated murder for each victim,
enumerating each of the separate aggravating factors. See
State v. Barrett, 331 Or 27, 37, 10 P3d 901 (2000) (so stating).
Defendant did not object at trial. The state concedes
that the judgment is erroneous, because it includes two sentences of
death, but argues that execution of the sentence of death will render
the issue moot.
The trial court erred when it imposed two convictions
and two sentences of death, and that error is apparent on the face of
the record. Again, we exercise our discretion to order that the trial
court correct the judgment so that it accurately reflects the penalty
for which defendant is liable. We remand the case for entry of a
corrected judgment of conviction reflecting defendant's guilt on the
charges of aggravated murder.
On remand, the trial court shall amend the judgment
to merge the two convictions for aggravated murder into a single
conviction, enumerating separately the aggravating factors on which the
conviction was based. See Barrett, 331 Or at 37 (so
stating). The court then shall impose a single sentence of death. See
State v. Gibson, 338 Or 560, 578, 113 P3d 423, cert den,
__ US __, 126 S Ct 760 (2005) (so stating).
We have considered defendant's other
assignments of error and every argument made in support of those
assignments. Based on our review, we conclude that no error occurred as
claimed in any of the assignments of error, including the ones not
discussed in this opinion, other than the assignments of error regarding
the form of the judgment. Further discussion of those other claimed
errors would not benefit the public, the bar, or the bench.
The judgment of conviction and the sentences,
including the sentences of death, are affirmed in part and reversed in
part. The case is remanded to the circuit court for further proceedings.