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Gregory Allen BOWEN
Gregory Allen Bowen
Curry County - Oregon
Born: 10/20/53
Sentenced to death: 2003
Bowen, of Crescent City, Calif., murdered Donald Palmer Christiansen,
76, of Brookings during a robbery-burglary. Prior to his capital murder
trial, Bowen pleaded guilty to attempted murder, assault, kidnapping,
coercion, menacing and theft for attacking Bridget Dorothy Dalton, 38,
at her home shortly before Christiansen's murder.
Bowen was convicted previously in connection with two deaths in
Nevada. He pleaded guilty to manslaughter in one case and to being an
accessory to murder after the fact in another.
Interesting fact: Bowen was the first person sentenced to
death in Curry County in more than 25 years.
Status: Death Row.
CurryPilot.com
March 31, 2010
GOLD BEACH – Gregory Allen Bowen, who has been on
death row seven years for the 2001 murder of 76-year-old Don Palmer
Christiansen, was again sentenced to death for that murder on Monday.
Bowen, now 56, was convicted on April 2, 2003, by a
Curry County Circuit Court jury of two counts of aggravated murder and
one of intentional murder. The jury then on April 17, 2003, deliberated
more than five hours before retuning an unanimous decision to invoke the
death penalty.
Bowen was convicted of the shooting death of
Christiansen in his Gardner Ridge home Dec. 29, 2001, leaving him on the
floor in a pool of blood and stealing three guns and a telephone. He was
also convicted of 16 additional felonies during that crime spree.
The conviction was appealed to the Oregon Supreme
Court, which in 2006 upheld the death sentence but sent the case back to
Curry County saying that the two convictions of aggravated murder with
sentences of death and his conviction for intentional murder should be
merged into one conviction.
“We affirm defendant’s convictions and sentences of
death and remand for entry of a corrected judgment of conviction
consistent with this opinion,” the high court said
Bowen had been scheduled to return to Curry County
for Monday’s sentencing but later decided to appear in court by
television from the state prison. When time came for the sentencing, he
again changed his mind and refused to appear.
His court-appointed attorney, Steven Gorham of Salem,
a defense attorney on a list of lawyers qualified to handle capital
murder cases, then telephoned the prison and Bowen agreed to appear at
the hearing by conference call.
“You understand the court has the ability to cause
you to be transported for personal appearance,” Judge Jesse Margolis
told Bowen.
Gorham made several motions for Bowen, including a
motion for a new trial and a motion for Margolis to sentence Bowen to
life with the possibility of parole. Margolis denied all the motions.
“You are allowed to address the court if you wish. It
isn’t a time you can argue you innocence,” Margolis told Bowen.
“I’m not guilty of aggravated murder,” Bowen said.
“I’m not guilty of murder at all.”
At the original trial, Bowen had contended the
shooting was an accident. He said Christiansen had grabbed the gun he
was going to commit suicide with.
The state claimed that Bowen and Christiansen were at
least five feet from each other.
Christiansen’s son, Donald, spoke to the court, also
by telephone.
“I feel no forgiveness for my father’s murder,” the
son said.
Christiansen said that the murder “gave him bragging
rights of what a cold-blooded murderer he is.
“I was at his appeal in Eugene. I was at his trial.
And I’ll be at his appeal in 2011 in Eugene,” Christiansen said.
He said that before Bowen had been placed on death
row, “he had plotted to break out and was threatening the death of
(Detective) Dave Gardiner. Gregory Bowen is a natural born predator.”
“This court shall follow the instructions of the
Supreme Court, which includes the sentence of death,” Margolis said.
“These three counts will merge into one count. There was a penalty phase
in which the jury unanimously agreed. Gregory Allen Bowen is hereby
sentenced to death.”
In the original trial, the jury deliberated for three
hours before finding Bowen guilty of all charges, including two counts
of aggravated murder, three counts of first-degree theft and one count
of theft in the second degree.
Bowen was arrested Jan. 3, 2002, in Cave Junction and
brought back to Curry County.
During the nine-day trial, defense attorneys Robert
Able and Corrine Lai worked hard to convince the jury to find their
client guilty of one of two other possible lesser crimes, intentional
murder or first-degree manslaughter, neither of which would carry the
threat of a death penalty.
In the penalty phase of the trial, jury members
deliberated more than five hours before returning an unanimous decision
to invoke the death penalty.
An important witness in the trial was Bridget Dalton
of Harbor. Bowen pleaded guilty in a separate hearing to attempted
murder and assault against Dalton, committed before going to
Christiansen’s home.
Testimony during the trial recounted days, before and
after the murder, when Bowen and his associate, Mike Colby, drove from
Crescent City, Calif., to Portland and back, stopping along the way at
towns along the coast to look for drugs and work, and finally ending up
in Cave Junction where the arrest took place.
On December 29, 2001, defendant and Colby traveled to
Gold Beach, where they began experiencing problems with their vehicle.
While in Gold Beach, defendant decided to visit his ex-girlfriend,
Bridget Dalton. Upon arriving at Dalton's house, defendant told her that
he wanted to pick up some extra clothes and give her money that he owed
her. After entering the house, however, defendant and Dalton began to
argue.
During that argument, defendant struck Dalton in the
face with his fist, knocking her to the floor. He then grabbed Dalton by
her hair, pulling her up from the floor, and proceeded to hold a knife
to her throat. Defendant then took Dalton into the bedroom and exchanged
his knife for a black-powder pistol, which he used to repeatedly to beat
Dalton.
During that altercation, Dalton grabbed the barrel of
the pistol and cut her hand on the gunsights. Shortly thereafter,
someone knocked on Dalton's front door. Defendant told Dalton that, if
she made a sound, he would shoot the person at the front door. After
defendant left the bedroom to check the front door, Dalton escaped the
house by jumping through a bedroom window. As Dalton ran to her
neighbor's house, she yelled for someone to call the police. In
response, defendant and Colby fled to a friend's house to listen to a
police scanner.
The victim and defendant got up from the kitchen
table and moved to the living room to talk. Defendant left the pistol on
the kitchen table. Colby remained at the kitchen table until he heard
their vehicle making strange noises outside. Defendant asked Colby to
step outside and check on it. After checking on the vehicle, Colby
remained outside to smoke a cigarette.
Defendant testified at trial that, after returning to
the kitchen and while Colby was outside, he informed the victim about
his earlier altercation with Dalton. Concerned about defendant's well-being,
the victim offered to call the police and encouraged defendant to turn
himself in. Defendant further testified that, as the victim prepared to
call the police, defendant grabbed the gun and said, "If you call 911[,]
I may as well just shoot myself and get it over with." According to
defendant, the victim attempted to take the gun away from defendant and
during the struggle, the gun accidentally went off. The bullet entered
the victim's chest above his left nipple and traveled downward,
deflected off a rib and pierced the victim's heart and liver.
The following day, a neighbor discovered the victim's
body and called the police. Shortly thereafter, a police officer arrived
and determined that the victim was "obviously deceased" and that the
scene revealed "obvious foul play." Several other police officers
arrived. Those police officers took photographs, turned the body over,
and cut open the victim's shirt with a pair of scissors.
Upon further investigation, police officers
discovered blood splatter low on the wall and framing of the doorway
between the living room and kitchen, low-angle blood splatter on and
under a cart just inside the kitchen, and blood smears on the kitchen
floor and on a white telephone. The officers indicated that the home
appeared "appropriately cluttered" and displayed no evidence of
ransacking.
The state subsequently charged defendant in an 18-count
indictment as a result of the crimes that occurred on the night of
December 29, 2001. One group of crimes involved defendant's ex-girlfriend
Dalton, and the second group of crimes involved the victim. Defendant
pleaded guilty to all charges involving Dalton. As relevant to this
court's review of the charges involving the victim, defendant was
indicted on two counts of aggravated murder, one based on the theory
that he intentionally and personally had caused the death of the victim
during a robbery, and the other based on the theory that he
intentionally and personally had caused the death of the victim during a
burglary. A jury ultimately convicted defendant on both counts of
aggravated murder.
Defendant maintains that the trial court erred in
overruling defendant's objections to photographs that the state
introduced depicting evidence of his crimes against Dalton. Before trial,
the parties and the court discussed a series of photographs that the
state sought to admit relating to defendant's assault of Dalton. Those
photographs consisted of images of injuries to Dalton's face, head, hand,
and legs, all taken prior to Dalton receiving medical treatment.
Defendant argued that the photographs "that depict the actual scarring,
the injuring, the bruising and so forth but don't depict the blood and
gore will certainly serve the purposes of the State in relaying to the
jury what took place on that day." Defendant argued further that "[a]nything
else is prejudicial and is not relevant to any value [and] it's not
probative of any issue in this case."
In response, the state argued that the photographs
were relevant because they gave a complete picture of the events that
had led to the victim's murder and because they placed defendant in an
area that was relevant to the victim's death, both in location and in
time. Ultimately, the court sustained defendant's objections to four of
the photographs, but allowed the state to introduce the balance of the
photographs. The court concluded that the photographs were relevant:
"It is relevant in my opinion because we're
talking about the same black-powder revolver. My understanding of
the evidence is the black-powder revolver belonged to Ms. Dalton on
the same date, being December 29, 2001[,] in the same area of Curry
County where [the victim] was killed. Since it's the same date and
it's the weapon, the alleged murder weapon in the particular case, I
think the State is allowed to show where that weapon came from.
"Obviously they are similarly situated since both
were in their own homes. They let a person into their own home who
they were previously aware of -- at least knew the individual. In
the case of Ms. Dalton, knew very well. And during the course of the
further contact between [defendant] in their own homes Ms. Dalton
was severely beaten and [the victim] ended up being killed."
Defendant argues that the "unfairly prejudicial
effect of the photographs substantially outweighed their minimal
probative value, and therefore the court should have excluded them [under
OEC 403]." "In the context of OEC 403, 'unfair prejudice' means 'an
undue tendency to suggest decisions on an improper basis, commonly
although not always an emotional one.'" State v. Moore, 324 Or
396, 407-08, 927 P2d 1073 (1996) (quoting Legislative Commentary, cited
in Laird C. Kirkpatrick, Oregon Evidence, 125 (2d ed 1989)). We
review trial court decisions under OEC 403 for an abuse of discretion.
Id. at 407.
In order to prevail, defendant must show that
admission of the photographs was "unfairly prejudicial." Id.
(emphasis in original). Defendant has not suggested that the photographs
in this case created a danger of undue prejudice other than to evoke a
person's natural revulsion regarding the beating Dalton endured. This
court previously has stated that relevant photographs are not unfairly
prejudicial simply because they are graphic. SeeState v.
Barone, 328 Or 68, 88, 969 P2d 1013 (1998), cert den, 528 US
1135 (2000) ("Although the photographs in question were graphic, they
could not be said to be remarkable in the context of a murder trial").
Consequently, we conclude that the trial court did not abuse its
discretion in admitting the photographs of Dalton's injuries.
Defendant argues that the trial court erred in
requiring him to wear a "stun belt" during the trial, without first
holding a hearing and finding that such control was necessary to prevent
defendant from disrupting the proceedings. Defendant concedes that he
did not object to wearing the stun belt or request findings to support
that form of restraint. Nevertheless, defendant argues that the trial
court erred by "deciding the question sua sponte." As a result,
defendant contends that this court should review his claim as "plain
error."
Plain error requires that (1) the error be one of law;
(2) the legal point be obvious, that is, not reasonably in dispute; and
(3) to reach the error, "[w]e need not go outside the record or choose
between competing inferences to find it[.]" State v. Brown, 310
Or 347, 355, 800 P2d 259 (1990). If the asserted error satisfies those
criteria, this court may then exercise its discretion to correct the
error. Ailes v. Portland Meadows, Inc., 312 Or 376, 382, 823 P2d
956 (1991). As this court articulated in Ailes:
"A court's decision to recognize unpreserved or
unraised error in this manner should be made with utmost caution.
Such an action is contrary to the strong policies requiring
preservation and raising of error. It also undercuts the established
manner in which an appellate court ordinarily considers an issue,
i.e., through competing arguments of adversary parties with an
opportunity to submit both written and oral arguments to the court.
Moreover, by expressly following the prescribed method of
recognizing unpreserved or unraised error, much greater efficiency
in the review process between appellate courts is facilitated by
giving this court the benefit of the recognizing court's reasoning."
According to defendant, this court should review the
alleged error as plain error because (1) he was entitled to a hearing on
the use of the restraint, but did not receive one; (2) the trial court
never made the findings required to justify the use of the stun belt;
and (3) "this court need not go outside the record to determine that the
use of the device was prejudicial to defendant's ability to participate
in his own defense." Defendant also contends that the court should
exercise its discretion to correct the issue because the "gravity of the
error is extreme." Defendant argues that the stun belt deprived him of
the ability to participate fully in his defense.
This court long has recognized the right of a
criminal defendant to appear free of physical restraints during a jury
trial. SeeState v. Smith, 11 Or 205, 8 P 343 (1883) (recognizing
principle). In State v. Long, 195 Or 81, 244 P2d 1033 (1952),
this court provided the rationale for that right, explaining "that such
restraint upon a prisoner 'inevitably tends to confuse and embarrass his
mental faculties[] and thereby materially to abridge and prejudicially
affect his constitutional rights of defense.'" Id. at 91 (internal
citations omitted). Defendant argues that requiring a person to wear a
stun belt is no different than requiring a person to wear shackles. We
do not agree.
The rationale used in Long is not applicable
in this case. There is no evidence in the record that the stun belt that
defendant wore at trial was visible to the jury, and, therefore,
defendant cannot claim that the jury was biased by its presence.
Furthermore, defendant failed to provide evidence or point to anything
in the record indicating that the stun belt affected his ability to
assist in his defense. Because defendant is unable to satisfy the third
element of the plain error criteria, this court will not consider
defendant's unpreserved claim of error.
C.
"the indictment on Count 1 in this case failed to
allege sufficient facts to constitute the offense of Aggravated
Murder, and it failed to allege facts sufficient to inform defendant
of the nature of the underlying burglary that the state intended to
prove, so that he would be able to prepare a defense."
Defendant argues that, under ORS 163.095(2)(d), the
state was required to allege that the defendant actually committed a
crime listed in ORS 163.115(1)(b) to prove the allegations in Count one.
Defendant further notes that in State v. Sanders, 280 Or 685,
688-90, 572 P2d 1307 (1977), this court held that an indictment alleging
burglary must specify the crime that the accused is alleged to have
intended to commit at the time that he or she entered or remained
unlawfully. Defendant argues that, to properly allege aggravated felony
murder based on the underlying crime of burglary, the state must allege
each of the elements of burglary. Without such allegations on the
state's part, defendant contends that he could not know whether the
state planned to prove that he intended to commit assault, murder, or
theft.
This court consistently has held that
"an indictment generally is sufficient if it charges an offense in the
words of the statute." State v. Hale, 335 Or 612, 621, 75 P3d
612 (2003). See alsoState v. Rogers, 313 Or 356, 380, 836
P2d 1308 (1992) (sex abuse charge was sufficiently definite and certain
without specifying the state's theory of the crime or elements of sexual
abuse); State v. Montez, 309 Or 564, 597, 789 P2d 1352 (1990),
cert den, 520 US 1233 (1997) (finding that "[a]n indictment in the
language of the statute generally is sufficient"). Hale,
Rogers, and Montez demonstrate that, when alleging aggravated
felony murder, it is unnecessary to set forth the elements of the
underlying felonies. In this case, because the state's indictment tracks
the language of ORS 163.095(2)(d) and ORS 163.115(1)(b)(C), the trial
court correctly denied the defendant's motion to dismiss and motion for
judgment of acquittal on Count one.
A. Testimony of Defendant's Forensic Expert
Defendant claims that the trial court erred in
restricting the testimony of defendant's expert witness regarding
whether the bullet that entered the victim's body would have inflicted a
fatal injury if it had not deflected off the victim's rib. Defendant's
theory of the case was that he did not shoot the victim intentionally
and, therefore, at most had committed the lesser-included offense of
manslaughter. Defendant testified that he had reached over and grabbed
the pistol from the table and was bringing it up to shoot himself when
the victim grabbed it in an attempt to stop him and the pistol
discharged.
At trial, the state's medical examiner testified that
the bullet that killed the victim had entered above his left breast,
traveled downward through the tissue under his skin, and struck his left
sixth rib, which deflected it to the right and through the victim's
heart and liver. The state's forensic expert testified, however, that
the victim had been shot at a distance of more than five feet because
the clothing that the victim wore at the time of the shooting did not
contain any gunshot residue.
In the context of that testimony, defense counsel
asked Sweeney: "Now, if that -- the way the angle that we're looking at,
if there had been no deflection, would this particular shot have been a
fatality in your opinion?" The state objected to that question without
stating any ground, and the trial court sustained the objection.
Defendant rephrased the question as, "If there is no deflection, where
would that -- where would you anticipate that bullet to go through?"
Again, the trial court sustained the state's objection, stating that the
question was "getting into high speculation." Defendant argued that "we're
talking about a trajectory going straight down and what I'm trying to
get at is where, if there was no deflection, where would it have gone in
the body?" The court ruled that the question was not relevant and added,
"Okay. But to any possible charges with [a lesser-included offense] that
question's still not even relevant."
To assure that appellate courts are able to determine
whether a trial court erred in excluding evidence and whether that error
was likely to have affected the trial's result, an offer of proof
ordinarily is required to preserve error when a trial court excludes
testimony. SeeState v. Affeld, 307 Or 125, 128, 764 P2d
220 (1988) (overruling line of cases holding that offer of proof was not
required on cross-examination). In Affeld, this court stated:
"The only situations in which an offer of proof
is not required are those situations in which an offer of proof is
impossible because of a trial court's refusal to allow the offer of
proof to be made."
B. Cross-Examination Regarding Defendant's
Previous Felony Convictions
Three of defendant's assignments of error involve the
prosecutor's cross-examination of defendant regarding his prior felony
convictions.
At the conclusion of defendant's direct testimony
during the guilt-phase of the proceeding, defense counsel questioned
defendant about his prior felony convictions. Defendant acknowledged
that he had been convicted of unauthorized use of a vehicle in
California, attempted arson in Nevada, and accessory to murder after the
fact in Nevada. Defendant could not recall if he also had been convicted
of being a felon in possession of a firearm. At the end of that exchange,
defendant stated: "I'm also -- I also * * *," but defense counsel
stopped him with the word, "No." The prosecutor's first question of
defendant on cross-examination was, "[W]hat other felonies have you been
convicted of?" Defendant replied, "I've also been convicted of a
Manslaughter charge in 1981." Defense counsel then asked to be heard
outside the presence of the jury. The court replied:
"But the question that was asked was legitimate.
The answer that was given I will instruct the jury to disregard
because it exceeds the fifteen year period. But there was nothing in
the question that would have led him to give that answer."
Defense counsel did not except to that instruction or
ask for a supplemental instruction. The prosecutor resumed cross-examination
of defendant but was interrupted by defense counsel who stated, "Excuse
me, Your Honor. Before we -- I've got a procedural matter." The trial
court then held a bench conference during which defendant apparently
moved for a mistrial. That conference, however, was unrecorded. The
trial court allowed cross-examination to continue and, following a brief
redirect, heard defendant's motion for mistrial outside the presence of
the jury.
"THE COURT: Okay. So if there is actually another
felony within the fifteen-year period then [the prosecutor] would
not be unethical or inappropriate in asking the question, 'Do you
have any other felonies?'
"[PROSECUTOR]: That's my understanding, Your
Honor.
"THE COURT: So that's why the Motion for Mistrial
was denied and that's why I didn't send the jury out. I assumed he
would not be asking that unless there was another felony in there.
"[DEFENSE COUNSEL]: Your Honor, if I may comment.
I believe that the other felony is in connection with this one, the
Manslaughter, is it not?
"[PROSECUTOR]: It is, Your Honor.
"THE COURT: It could be in connection with it,
but it's not one that's listed and he would be able to list that.
"[DEFENSE COUNSEL]: Your Honor, I'd want to make
a little record here if I may.
"[DEFENSE COUNSEL]: And I have some concerns. And
the reason I have some concerns is timing. And [the prosecutor] has
-- knows fairly well that my client is spontaneous in response. And
* * *
"THE COURT: (Interposing) We've noticed that.
"[DEFENSE COUNSEL]: Yes. And I am walking back to
my table when he asked that statement. He knows darn good and well
that the Manslaughter is not admissible. He makes that statement
while I'm doing something else.
"And, you know, the whole thing -- it was set up.
It -- to me, it just -- I have grave concerns about the way the
process went and I think that [the prosecutor] knew full well that
that was not admissible. He used it at a time when I was distracted
so I could not step in and he knew exactly what the purpose was and
it was to impeach him on a crime that was not an impeachable crime.
"THE COURT: Okay. But the question he asked is a
legitimate question as long as there [were] other felonies not
elicited in direct examination. He's not required to ask 'in the
last fifteen years.' It might be a better question but then there
might be a complaint that he's insinuating to the jury that there
are other felonies beyond the 15-year period.
"So the question was appropriate. He had a basis
for the question and unfortunately [defendant] didn't give one of
the theft cases, he gave a 1980 one. And the jury has been so
cautioned. Obviously it is always difficult to unring the bell but
the motion has been made. The motion has been denied."
"[PROSECUTOR]: Your Honor, in regard to that
motion I have to indicate to the Court that in the certified copy of
conviction that I'm looking at, I represented to the Court a moment
ago that Defendant was convicted of Receipt of Stolen Property.
"Your Honor, at the time that I asked the
question that was my impression. As the Court was questioning me I
looked at the front page of this conviction and I come to find that
the Defendant pled guilty and was sentenced only on Count I of that
indictment. I was in error, Your Honor. I thought he was convicted
of Count II as well and in looking at the information I noticed that
the other two are misdemeanors.
"As I'm asking the question I'm looking at Count
II, I see a felony; I ask the question. For that I apologize and I
did not mean to misrepresent to the Court * * *
"THE COURT: (Interposing) So to make sure the
record is absolutely clear then, is there no other felony within the
fifteen years?
"[PROSECUTOR]: That seems to be the case, Your
Honor. I don't have another felony within the fifteen years. It's
the Unauthorized Use of a Motor Vehicle; that's my mistake. I asked
for other felonies. It was my impression that he'd been convicted of
Receiving Stolen Property as well and in looking at the front page
of the document it appears he pled guilty only to Count I,
Unauthorized Use.
"[PROSECUTOR]: My intention, Your Honor, was not
to elicit an answer on the Manslaughter.
"THE COURT: I know that.
"[PROSECUTOR]: I'm aware of that and we've
discussed that with counsel and I might represent I don't know that
the Defendant is spontaneous or not. I've seen him on the videotapes.
I've never seen him testify. I had no idea whether he was
spontaneous or not. The fact remains, Your Honor, the question was
asked; the Defendant answered it. That's not the answer I expected.
And so * * *
"[DEFENSE COUNSEL]: And based on his statements
of -- and the search of the records which I appreciate, I would
again move for mistrial.
"THE COURT: Your motion is stronger but for the
reasons previously stated the motion is still going to be denied.
"[DEFENSE COUNSEL]: Thank you and I would accept
your ruling.
"THE COURT: Okay. I believe the instruction that
I gave the jury hopefully will resolve the problem."
"Now, if you find that a witness has been
convicted of a crime you may consider this testimony only for its
bearing, if any, on the believability of that witness's testimony.
"Likewise, if you find that [defendant] has been
previously convicted of a crime you may consider this conviction
only for its bearing, if any, on the believability of [defendant's]
testimony. Specifically, you may not use this evidence for the
purpose of drawing the inference that because [defendant] was
convicted of a previous crime, [defendant] may be guilty of the
crimes charged in this particular case."
In three assignments of error, defendant claims that
the trial court erred by (1) denying defendant's immediate request to be
heard outside the presence of the jury on his objection to the state's
question; (2) giving a curative instruction without first allowing
defendant to object to that instruction; and (3) denying defendant's
subsequent motion for a mistrial. Defendant makes the following combined
argument in support of those three assignments of error.
Defendant argues that the prosecutor's question
prejudiced defendant's right to an impartial jury under Article I,
section 11, of the Oregon Constitution as well as the Sixth Amendment to
the United States Constitution, and deprived defendant of his
fundamental right to a fair trial. Defendant contends that the result of
the prosecutor's question -- i.e., disclosing to the jury that
defendant had committed a prior manslaughter -- was extremely
prejudicial. Defendant also argues that no instruction could cure the
overwhelming probability that the jury would use the knowledge of that
conviction as evidence of defendant's propensity to kill. Moreover,
defendant maintains that the trial court's instruction to the jury that
the manslaughter conviction was not admissible because it was more than
15 years old did not mitigate that prejudice but, rather, added to it
because "[i]t effectively told the jury that the reason that the
evidence was not allowed was one of those proverbial 'technicalities'
that is just the sort of thing that infuriates the lay public against
defense attorneys and those whom they represent." Consequently,
defendant concludes, the trial court abused its discretion in denying
defendant's motion for a mistrial.
Finally, the state argues that the trial court did
not abuse its discretion in denying defendant's motion for a mistrial.
The state asserts that the trial court was in the best position to
assess any potential prejudice and to rectify it. Consequently, the
state contends, the trial court's determination that a curative
instruction would be sufficient to mitigate any prejudice and that
declaring a mistrial was unnecessary, was within the trial court's sound
discretion. The state also points out that defendant has not
demonstrated that the jury failed to follow the court's instruction.
In answer to the first of defendant's assignments of
error here, our review of the record supports the state's position that
defendant did not, in fact, object to the prosecutor's question. Instead,
defendant requested to be heard on a motion for a mistrial outside the
presence of the jury. Although the court denied that request when made,
it credited the request as timely and heard defendant on the merits of
the motion at the close of cross-examination and a brief redirect
examination. Hence, the premise of defendant's assignment of error (that
the trial court did not allow him to object to the state's question) is
not supported by the record.
Defendant's final assignment of error here contends
that the trial court erred in denying defendant's motion for a mistrial.
Whether to grant a mistrial is a determination committed to the "sound
discretion of the trial court," Rogers, 313 Or at 381, because
the trial judge is in the best position "to assess and to rectify the
potential prejudice to the defendant," State v. Farrar, 309 Or
132, 164, 786 P2d 161 (1990). Thus, we review whether a mistrial should
have been granted for abuse of discretion. State v. Smith, 310 Or
1, 24, 791 P2d 836 (1990); see alsoState v. Wright, 323
Or 8, 19, 913 P2d 321 (1996) ("[T]he trial court's choice not to declare
a mistrial but, instead, to give a cautionary instruction, falls within
the permissible range of choices committed to the court's discretion.").
Even if we find a prosecutor's conduct to be improper, we will not find
an abuse of discretion unless the effect of that conduct is to deny a
defendant a fair trial. Wright, 323 Or at 19; State v. Hoffman,
236 Or 98, 108, 385 P2d 741 (1963). That is so because the "presumably
harmful effect" of prosecutorial misconduct may be obviated by a proper
instruction. State v. Wederski, 230 Or 57, 60, 368 P2d 393
(1962). Therefore, the dispositive question on this issue is "whether
the purportedly curative instruction was sufficient to unring the bell."
State v. White, 303 Or 333, 342, 736 P2d 552 (1987); see alsoState v. Jones, 279 Or 55, 62, 566 P2d 867 (1977) ("There may,
however, be cases in which the testimony which the jury is instructed to
'disregard' is so prejudicial that, as a practical matter, 'the bell
once rung, cannot be unrung' by such an admonishment.").
"This prosecuting attorney, well knowing that he
had no proof that defendant has been previously convicted of rape
(as indicated by the record of various other offenses offered by him
in evidence), persisted in making comments and insinuations to that
effect, including the clearly improper attempt to get before the
jury the alleged statement by [the prosecution witness] that he had
'done it so many times before.'
"In a prosecution for rape in which, as in this
case, the jury must decide between the credibility of the
prosecuting witness and the defendant, the prejudice resulting from
the admission of such evidence was so pervasive as to lead us to the
conclusion that, as a result, defendant was denied a fair trial."
Jones, 279 Or at 63. Accordingly, this court
reversed and remanded for a new trial.
In White, the prosecutor remarked in opening
statement that the defendant had refused to testify in his codefendant's
trial. Immediately thereafter, defense counsel moved for a mistrial. The
trial court concluded that the remark was inappropriate but denied the
motion on grounds that, at that stage of the proceeding, "an indication
to the jury that whether or not [the defendant] chose to testify in a
prior proceeding [was] not relevant[.]" White, 303 Or at 337. The
trial court then instructed the jury that the defendant's refusal to
testify was "not relevant" and not "probative of the evidence in this
case." Id. at 338. On review, however, this court reached a
contrary conclusion.
Here, as stated above, immediately following the
prosecutor's objectionable question, the trial court gave a curative
instruction to the jury to disregard any convictions that were not
within the permissible 15-year period. That instruction was
significantly stronger that the statement given in White; by
contrast, it included an explanation of the sole purpose for admitting
prior convictions and the reason why the reference to defendant's
manslaughter conviction was to be disregarded. Additionally, the trial
court expressly instructed the jury that defendant's prior convictions
could not be used as evidence of his propensity to commit the crimes
charged in the present case. "[J]urors are assumed to have followed
their instructions, absent an overwhelming probability that they would
be unable to do so." Smith, 310 Or at 26. Moreover, on the facts
of this record, it is difficult to say that the prosecutor's behavior,
though careless, was a deliberate attempt to admit improper evidence.
In view of the foregoing, as well as this court's
deference to the trial court's assessment of the need for a mistrial,
Wright, 323 Or at 12, we conclude that the trial court's cautionary
instructions to the jury were sufficient to protect against prejudice to
defendant and, therefore, its denial of defendant's motion for a
mistrial was not an abuse of discretion. SeeState v. Terry,
333 Or 163, 177, 37 P3d 157 (2001) (finding curative instruction
sufficient to "neutralize the possibility of prejudice to the defendant"
where witness's statement contained inference that defendant failed
polygraph examination); Montez, 309 Or at 596 (concluding that
mistrial not warranted on grounds of prosecutorial misconduct where
prosecutor's question was not intended to elicit inadmissible testimony
about defendant's prior criminal conduct).
C. Jury Instructions Regarding Lesser-Included
Offenses
Defendant next claims that the trial court erred in
denying his requests that (1) the jury be instructed that manslaughter
is a lesser-included offense of aggravated murder; and (2) the verdict
form include the lesser-included offenses of murder and manslaughter as
alternatives to both counts of aggravated murder.
In proposing jury instructions to the trial court,
defendant requested that the jury be instructed on first-degree
manslaughter as a lesser-included offense to both charges of aggravated
murder (Counts one and two) and the charge of intentional murder (Count
three). Based on defendant's testimony that he did not intentionally
kill the victim, the trial court agreed to give the first-degree
manslaughter instruction as a lesser-included offense of the intentional
murder charge. On defendant's request that the instruction also be given
with respect to both counts of aggravated murder, the trial court
concluded:
"If they were to find that he did not
intentionally kill [the victim] in the aggravated, then they would
really be bouncing all the way down to the reckless conduct for
Manslaughter. However, with the way the instructions are set up they
would still be required to go through the charges that we presently
have in the indictment and they can go in any order, obviously, but
if they find him not guilty of intentionally causing the death in
the Aggravated Murder then obviously in the next charge, Count III,
they would find him not guilty of the Murder.
"So I don't see any reason to give a lesser
included in both of those. I think it would be extremely confusing
to the jury. Because they're going to get -- if they do that
scenario, they’re going to get to the lesser included Manslaughter
in the First Degree.
"* * * * *
"Because they still have to render a verdict on
Intentional Murder."
At that point, defendant's counsel indicated that the
trial court's sequence of instructions could generate "potential
confusion," but did not articulate how that confusion would occur. In
response, the trial court explained its approach again:
"[W]hat I've set it up as Aggravated Murder will
be decided by the jury.
"* * * * *
"Because they have to get -- if they stop
somewhere along the line, they do not get to the lesser included. If
they don't stop at Aggravated Murder or Murder then they have to
deliberate on the Manslaughter in the First Degree."
After a recess, defendant objected to the proposed
verdict form on the ground that it did not indicate that intentional
murder and first-degree manslaughter were lesser-included offenses of
aggravated murder. Defense counsel stated that defendant's position was
that "the verdict form in its form does not give the jury an impression
that they have an alternative to Aggravated Murder either under Counts I
or II; that they must either vote guilty or not guilty[.]" Referring to
its previous decision concerning the jury instructions, described above,
the trial court reiterated that it would give first-degree manslaughter
as a lesser-included offense of the murder charge. The court indicated
that, in charging the jury, it would explain that the jury would
deliberate on the lesser-included offense only if the jury found
defendant not guilty of the charged offenses of aggravated murder and
intentional murder. Defendant excepted to that ruling. Neither defendant
nor the state requested lesser included instructions on felony murder or
the crimes of first-degree burglary or first-degree robbery.
The trial court's instructions included the following
statement: "[R]emember the instructions should always be taken as a
whole. Don't concentrate on any particular instruction." After
instructing the jury on the elements of aggravated murder and murder,
the trial court, in relation to the first-degree manslaughter
instruction, informed the jury, "Now, when you deliberate you should
first consider the charged offense of Murder. Only if you find the
Defendant not guilty of the charged offense may you consider the lesser
included offense of Manslaughter in the First Degree."
Although the trial court instructed the jury on first-degree
manslaughter as a lesser-included offense to the murder charge,
defendant submits that that procedure "did not alleviate the harm" from
the trial court's failure to so instruct on the aggravated murder counts.
Defendant alleges the following types of harm: (1) the jury might have
found that defendant committed a robbery and a burglary, but did not
cause the victim's death intentionally, and yet nevertheless convict him
of aggravated murder rather than leave him unaccountable for the robbery
and burglary; and (2) "the jury was not told that it could find
defendant guilty of manslaughter under each or any of the counts[.]"
Defendant contends that the evidence in this case could have supported a
"number of different possible combinations of guilt on the principal
charges and lesser-included offenses." Therefore, defendant concludes,
"[b]ecause many of the various lawful ways of resolving the conflicts in
the evidence were foreclosed by the instructions as given, the denial of
the requested instructions was not harmless." Correspondingly, defendant
asserts that the trial court erred in refusing to include intentional
murder and first-degree manslaughter on the verdict form as lesser-included
offenses of each aggravated murder count.
In State v. Washington, 273 Or 829, 836, 543
P2d 1058 (1975), this court provided the following framework concerning
lesser included offense instructions:
"[E]ither the defendant or the prosecution can
request an instruction as to lesser offenses which are included
either under the statutory definition or under the indictment
charging the crime.
"The single limitation on the right of either the
prosecution or the defendant to request lesser included offense
instructions under [ORS 136.460 and ORS 136.465] is that there must
be evidence, or an inference which can be drawn from the evidence,
which supports the requested instruction so that the jury could
rationally and consistently find the defendant guilty of the lesser
offense and innocent of the greater."
Furthermore, in State v. Naylor, 291 Or 191,
195, 629 P2d 1308 (1981), this court stated:
"A defendant is entitled to an instruction on
lesser included offenses if there is a disputed issue of fact
enabling the jury to find that all the elements of the greater
offense have not been proven, but that all the elements of one or
more of the lesser offenses have been proven."
Article VII (Amended), section 3, of the Oregon
Constitution, however, "requires this court to affirm judgments of lower
courts if, in the opinion of this court, the judgment achieved the
correct result, even if error was committed." Affeld, 307 Or at
128. Further, we note that a jury instruction does not constitute
reversible error unless it prejudiced the defendant when the
instructions are considered as a whole. State v. Williams, 313 Or
19, 38, 828 P2d 1006 (1992). Thus, the issue here becomes whether the
trial court's error was harmless.
In the present case, the record reflects that the
trial court instructed the jury on the elements of aggravated murder (including
the elements of burglary and robbery), intentional murder, and first-degree
manslaughter, albeit not in the sequence that defendant requested.
Furthermore, we must presume that the jury followed the trial court's
charge that it consider all of the jury instructions as a whole.
Smith, 310 Or at 26. In any event, the case was submitted to the
jury with complete and correct statements of the law necessary for it to
properly determine whether the state had proved defendant's guilt on the
crimes charged beyond a reasonable doubt.
Thus, we find it difficult to posit that, in view of
the jury instructions as a whole, defendant was prejudiced by the trial
court's decision to instruct the jury on the lesser-included offense of
first-degree manslaughter in relation to the intentional murder charge,
rather than in relation to the aggravated murder charges. In our view,
the trial court's instructions to the jury, as a whole, were sufficient
to inform the jury of the possible verdicts it could return on the
various charges, based on how it resolved the facts. Consequently,
defendant was not prejudiced by the instructions themselves or the
sequence in which they corresponded to the verdict form. We conclude,
therefore, that the trial court's error was harmless.
A. Evidence Regarding Defendant's Role in Prior
Murder
Four of defendant's assignments of error relate to
state evidence presented during the penalty phase of defendant's trial
concerning his role in the 1985 murder of Marjorie Kincaid.
Defendant argues that the trial court
should have excluded the evidence regarding the Kincaid murder as
unfairly prejudicial under OEC 403, both because defendant was not
prepared to defend against a second homicide and because that evidence
was unduly inflammatory. In response, the state contends that the trial
court properly admitted the evidence regarding the Kincaid murder and
that admission of that evidence did not violate OEC 403. The state
asserts that evidence indicating that defendant committed a previous
murder was directly relevant to two questions that the jury was required
to consider for sentencing purposes: (1) "[w]hether there is a
probability that the defendant would commit criminal acts of violence
that would constitute a continuing threat to society," and (2) "[w]hether
the defendant should receive a death sentence." ORS 163.150(1)(b)(B),
(D). In addition, the state points out that the trial court took
measures to mitigate the potential for unfair prejudice.
Moreover, contrary to defendant's position on review,
the trial court was not required to exclude the evidence regarding the
Kincaid murder as unfairly prejudicial. In Moore, 324 Or at
407-08, this court determined that, "[i]n the context of OEC 403, 'unfair
prejudice' means 'an undue tendency to suggest decisions on an improper
basis, commonly although not always an emotional one.'" That is not the
nature of the evidence here. As the trial court correctly concluded, the
proffered evidence was prejudicial in the sense that it was highly
probative, but not unfairly so.
Furthermore, the trial court took a number of
measures to mitigate the potential for unfair prejudice. First, the
trial court excluded from evidence all photographs regarding the Kincaid
murder with the exception of those that depicted the ransacking of the
Kincaid home. Therefore, although the jurors heard testimony concerning
the Kincaid murder, those jurors did not view images likely to inflame
or distract them. Second, as was his right, defendant had the
opportunity to rebut the state's assertions regarding his involvement in
the Kincaid murder. Finally, the trial court instructed the jury "to
weigh the evidence calmly and dispassionately and to decide this case on
its merits," as well as not "to allow bias, sympathy or prejudice any
place in [its] deliberations."
Defendant asserts that the trial court was obligated
to admit defendant's evidence to rebut the assertion that defendant had
committed the Kincaid murder. Defendant therefore claims that the trial
court's exclusion of that evidence on hearsay and confusion grounds was
error. Defendant also asserts that the trial court erred in excluding
evidence that he was physically unable to commit the Kincaid murder.
Defendant contends that that evidence was relevant to rebut the state's
theory of that crime and because its admission neither would have
confused the jury nor would have unduly delayed the trial.
In response, the state argues that, by failing to
make an offer of proof as to the excluded evidence, defendant did not
adequately preserve that claim.
In his next assignment of error, defendant argues
that the trial court erroneously denied his request for a limiting
instruction regarding evidence of his involvement with the Kincaid
murder. According to defendant, when evidence is admissible for only a
limited purpose, a trial court must provide an instruction ensuring the
appropriate use of the evidence. In support, defendant relies on OEC
105, which provides:
"When evidence which is admissible as to one
party or for one purpose but not admissible to another party or for
another purpose is admitted, the court, upon request, shall restrict
the evidence to its proper scope and instruct the jury accordingly."
Defendant contends that, because the jury was
permitted to consider the Kincaid evidence only in regard to the issue
of future dangerousness, OEC 105 applies. Consequently, defendant argues
that, without the appropriate instruction, "there was a high risk that
the jury improperly considered the prior bad acts evidence as propensity
evidence to decide that defendant committed the crime at issue in this
case deliberately[.]" As a result, defendant claims that the trial
court's refusal to provide a limiting instruction to the jury
constituted reversible error.
"[Defendant] has pled guilty to accessory after
the fact to the homicide involving Ms. Kincaid; [the prosecutor] is
going to be presenting you evidence that's going to try to show that
[defendant] had a more direct involvement in that homicide; that is
offered solely for the purpose of you determining his future
dangerousness."
The state claims that defendant's proposed
instruction was not only an incorrect statement of the law, but that it
also constituted an improper comment on the evidence.
ORS 163.150(1)(c)(B) requires a
trial court to instruct the jury to consider "any aggravating evidence,"
as well as mitigating evidence, in determining "[w]hether the defendant
should receive a death sentence." ORS 163.150(1)(b)(D). Here, if the
jury believed the state's evidence regarding the level of defendant's
involvement in the Kincaid murder, the jury could consider that evidence
as a form of aggravating evidence. Accordingly, because defendant's
proposed jury instruction would have prevented the jury from considering
such evidence, that instruction would have been erroneous. See
State v. Guzek, 336 Or 424, 437, 86 P3d 1106 (2004) ("After the 1995
and 1997 amendments to ORS 163.150(1)(a) and (c)(B), the state now has
an additional express statutory avenues to introduce evidence
against a defendant, because it now may introduce 'any aggravating
evidence' that is not relevant to the first three statutory questions
and that pertains to a statutory question that is not subject to any
burden of proof."). (Emphasis in original.) As a result, we conclude
that the trial court correctly rejected defendant's proposed jury
instruction.
Defendant claims that the trial court erred in
sustaining the state's objection on relevance grounds to testimony that
defendant should not receive the death penalty and in instructing the
jury to disregard that testimony.
During the penalty phase, defense counsel asked
defendant's former girlfriend, Cheryl Keil, the following question on
cross-examination:
"Ms. Keil, given all the good times that you've
had with [defendant], all the bad times that you've had with [defendant],
do you want this jury to impose the death penalty?"
In response, the state argues that defendant's claim
is unpreserved because defendant did not object to the trial court's
decision to reverse its ruling or make an offer of proof to attempt to
establish the requisite foundation under Wright. Consequently,
the state concludes, defendant has not preserved an error for this
court's review. Alternatively, the state contends that, in any event,
the trial court's final ruling was a correct application of Wright
because Keil's testimony was not relevant to any aspect of defendant's
character or background under ORS 163.150(1)(b)(D).
C. Entry of Multiple Convictions and Sentences for
Aggravated Murder
Defendant next claims that the trial court erred by
entering multiple convictions and imposing multiple sentences of death
for Count one (aggravated murder -- death caused during robbery) and
Count two (aggravated murder -- death caused during burglary).
The trial court entered separate judgments on Count
one and Count two, each of which sentenced defendant to death for the
murder of the victim. Defendant did not object to the court's failure to
merge those convictions, but argues that this court should review the
error as apparent on the face of the record. The state concedes that the
trial court erred in entering separate judgments. We agree that the
trial court erred when it entered two separate judgments and imposed two
separate sentences of death, and that that error is apparent on the face
of the record, as discussed below.
ORS 161.067(1) provides:
"When the same conduct or criminal episode
violates two or more statutory provisions and each provision
requires proof of an element that the others do not, there are as
many separately punishable offenses as there are separate statutory
violations."
"the harm that the legislature intended to
address by ORS 163.095 was the intentional, aggravated killing of
another human being. The aggravating factors constitute no more than
different theories under which murder becomes subject to the
enhanced penalties for aggravated murder. That defendant's conduct
in intentionally murdering the victim in this case was 'aggravated'
by 'any,' i.e., one or more, act surrounding that conduct
does not convert that conduct into more than one separately
punishable offense."
Id. at 36. Accordingly, this court reversed
the Court of Appeals' conclusion that the defendant’s conduct consisted
of three difference crimes and remanded the case to the trial court for
resentencing.
In State v. Hale, 335 Or 612, 630-31, 75 P3d
612 (2003), the jury convicted defendant on 13 counts of aggravated
murder involving three victims, and the trial court entered multiple
judgments and sentences of death for each victim. The defendant in
Hale did not object to the imposition of those judgments and
sentences, but later asked this court to review those sentences as error
apparent on the face of the record. The state conceded that the trial
court had erred. This court agreed that the sentencing was erroneous
under Barrett and remanded the case for the trial court to enter
corrected judgments reflecting a single conviction of aggravated murder
for each victim. This court further required that each judgment
enumerate separately the aggravating factors upon which each conviction
was based and impose a single sentence of death. Hale, 335 Or at
631.
D. Merger of Murder Count with Aggravated Murder
Counts
Finally, defendant claims that the trial court erred
by failing to merge his conviction of intentional murder with his
convictions of aggravated murder for the death of the same victim.
In sentencing defendant for intentional murder, the
trial court made the following statement:
"As to Count III, that is the Intentional Murder
[Count], obviously that cannot be imposed should the Aggravated
Murder death sentence be carried out. However, as we're all aware,
there's going to be a long and lengthy process of appeal in this
particular case so I am going to go ahead and sentence you on Count
III which may avoid coming back here if they set aside Count I and
II's sentence for any particular reason."
The state concedes that the trial court erred when it
failed to merge defendant's murder conviction with his aggravated murder
convictions and that the error is apparent on the face of the record.
The state, however, urges this court not to consider defendant's claim
of error, because it is unpreserved and is not "so egregious that this
court should exercise its discretion to consider it." The state bases
that position on the following reasoning:
"[D]efendant has been sentenced to death for two
counts of aggravated murder. If those convictions and the sentences
of death are not vacated, the 300-month sentence imposed for count 3
will have no effect on defendant. Consequently, as a practical
matter, the improper sentence will be merged into the greater
sentences because, if the death penalty is carried out, defendant
will never serve the sentence that was imposed on count 3 for
intentional murder."
(Emphasis in original.) In our view, the state's
argument contains too many contingencies.
"A defendant may be punished separately for
conduct or a criminal episode that violates two or more statutory
provisions only if the following conditions are met: (1) the
defendant engaged in acts that were the same conduct or criminal
episode; (2) the defendant's acts violated two or more statutory
provisions; and (3) each statutory provision requires proof of an
element that the others do not. [ORS 161.067(1)]. This court has
explained that those conditions are not met where one offense
charged truly is a lesser included offense of another offense
charged, that is, when the former has no elements not also present
in the latter, even though the latter has additional elements not
present in the former. State v. Crotsley, 308 Or 272, 279-80,
779 P2d 600 (1989)."
See alsoIsom, 313 Or at 407 ("The
crime of intentional murder is 'necessarily included' in the crime of
aggravated murder.").
We therefore conclude that the trial court erred in
not merging defendant's conviction for intentional murder with his
convictions for aggravated murder and that that error is apparent on the
face of the record. Accordingly, we reverse the judgment of conviction
for intentional murder on Count three, vacate the sentence imposed on
that conviction, and remand to the trial court for entry of a corrected
judgment and resentencing.
The judgments of conviction and sentences of death
are affirmed. The case is remanded to the circuit court for further
proceedings.