Oregon Supreme Ct - May 5, 2016
by: Aalvarez • May 7, 2016 • no comments
Theft – Exact Worth of a Stolen Item Not a Material Element of the Crime
In a prosecution for theft, the exact worth/valuation of the stolen item is not a material element of the crime. So long as the item stolen had “some value,” it could be considered “property” under the Oregon theft statutes. In the prosecution for third degree theft, where the property is stolen is valued at less than $100, the state only need to prove that the stolen item possess some value greater than zero. Further, in most cases, a stolen item’s value could be proven by inference, for example, by showing that a market for the items stolen existed, thus establishing that the items stolen had some value.
Here, the defendant was charged with third degree theft based on testimony that he took scrap metal out of a dumpster behind a company’s office building. Although the state did not call a witness who could establish the actual monetary value of the scrap metal, a security guard testified that the company had an ongoing contractual relationship with a recycling company that paid them varying amounts for the contents of the container based on the weight and type of metal. This testimony was sufficient for a fact finder to find that there was a market for scrap metal based on weight and type, and that the items selected by the defendant had value in the market. Affirmed. , State v. Waterhouse, 359 Or. 351 (2016)
State v. Joshua Turnidge, 359 Or. 364 (2016)-143 Pages Covering Multiple Legal Issues
In a lengthy opinion, the Oregon Supreme Court examined the following issues:
Article I, section 12 – “Compelling Circumstances”
The defendant was not in compelling circumstances when he was questioned by two plain clothes police officers first on the porch of his own home and then in the passenger seat of their unmarked police car. “The encounter occurred at a place familiar to defendant, in a relatively relaxed and noncoercive environment, with repeated expressions by [the officers] that defendant had the ability to end the encounter whenever he wanted, and with repeated instances in which defendant exercised control over the terms of the encounter.”
Exclusion of Jurors – Death Penalty
The trial court did not err in excluding three jurors from the jury panel in a capital case as all three of them expressed that their personal views on the death penalty would interfere with their respective abilities to follow the law. Such is a permissible reason for the trial court’s exclusion of those jurors.
Destruction of Juror Questionnaires – Due Process
The trial court’s order destroying completed juror questionnaires after voir dire, despite counsel’s offer to scan them into a digital format as to avoid the trial court’s concern of clogging up the record, did not per se deprive the defendant of due process. Although the Oregon Supreme Court explicitly disapproves of the trial court’s decision to destroy the juror questionnaires, the Court recognizes that the trial court was “well-intentioned” in its reasons for destroying the questionnaires, and that the court did not act in “bad faith” as required to show a per se due process violation. Further, the defendant was not prejudiced by the trial court’s act of destroying the questionnaires. The trial court gave the defendant ample time to preserve the specific documents and questionnaires that he thought should be preserved for appellate review and because the parties went through voir dire knowing that the court was not going to preserve the questionnaires, so that they had every incentive to make the most of voir dire.
Prior Bad Acts – Evidence of a Plan – Prior Bomb Threat
The trial court did not err in admitting evidence about an earlier 1995 bomb threat that defendant had called into a bank located near the banks involved in the presently charged bombing. Several aspects of the 1995 bomb threat show that the evidence was logically probative to prove that the defendant made that threat as a “trial run” to accomplishing the presently charged crimes. Both incidents occurred in Woodburn and within the same general area of each other. All three-bank locations (the two involved in the present bombing and the third the subject of the 1995 bomb threat) were within view of the restaurant from which the defendant watched police respond to his 1995 bomb threat. The 1995 bomb threat also supports the inference that in placing the bomb in 2008, defendant and his co-defendant purposefully selected the same general location, located near I-5, because the defendant was familiar with it. Moreover, both incidents involved threatening calls made to bank tellers with specific instructions to go to specific locations outside, but in the immediate vicinity of the banks in questions. Lastly, the defendant learned from the 1995 bomb threat about the nature of the police response when a life threatening call is made to the bank. Although there was a significant lapse in time between the two events, so long as it is logical to infer that the past act was “a preparatory step in the commission of the charged crimes,” the prior steps in the plan “do not have to be proximate in time to the charged crimes.”
In addition to meeting the test under OEC 404(3), the trial court also properly performed the balancing test under OEC 403. Although the trial court did not specifically frame the discussion in “probative” versus “prejudicial” value of the evidence, the trial court plainly discussed the factors that played into the balancing evidence (i.e. the similarity of the crimes, the distance in time between them, etc.). That was sufficient in this case.
Lastly, the trial court did not err in refusing to give a Leistiko type instruction that required the jury to find first the defendant committed the prior act before considering its value. The Court explained that:
"As we have concluded, the 1995 bomb threat evidence went to defendant’s affirmative plan to rob a bank, a relevant and admissible purpose under OEC 404(3). If believed by the jury for that purpose, the evidence tended to show both that defendant engaged in the charged conduct and did so with the required mental state. For the evidence to be relevant, the jury was not first required to conclude that defendant in fact had engaged in the charged criminal conduct. Rather, the 1995 bomb threat evidence was independently probative of that very fact. For those reasons, the trial court did not err in failing to give a Leistiko-style limiting instruction."
Relevant Evidence – Hostile Views Towards the Government
Evidence of defendant’s anti-establish views, specifically, his negative views towards law enforcement, were logically relevant under OEC 401 in proving the state’s theory that the defendant took the actions he did to kill others, including law enforcement. “In essence, the fact that defendant held vehement anti-government, anti-establishment, and anti-law enforcement views supplied evidence of his motive for his participation in the ultimate explosion that killed and injured law enforcement officers.”
Further, admission of the defendant’s anti-establishment views did not violate the defendant’s First Amendment rights because the state’s collective proof in the case showed why the defendant’s anti-government views were relevant to the issues being tried during the guilt phase.
Proof of Intent and Causation– MJOA
The state puts on sufficient evidence to prove that murder was committed intentionally if it proves that the defendant “intends, in an un differentiated way, to cause the death of one or more other human beings; the defendant does not have to know the identity of his victims or target them based on identity.”
Here, the state put on sufficient evidence to prove that the defendant intended to cause the death of the victims in the case because he designed, built, and planted a bomb at the bank where the explosion occurred. “The jury could find that, once the bomb was planted outside West Coast Bank, defendant then called Wells Fargo Bank, issuing direct threats and explicit instructions to bank employees, intending to draw law enforcement to both banks,” and that “responding law enforcement played directly into the defendant’s hands,” by taking the bomb, which appeared to be a hoax bomb, into the bank to inspect it, where it later exploded, either through a remote detonation by the defendants, a stray radio signal, or the accidental mishandling by the police. It was reasonable for the jury to infer that there would have been no reason to build the bomb so it appeared to be a hoax, when it was really capable of mass destruction, if the defendant did not plan on the bomb exploding.
Further, there was also sufficient evidence as to the causation element. But for the defendant’s conduct, the victim’s deaths would not have occurred. “[H]ad defendant not designed, built, and planted the bomb at the bank, there would have been no explosion and no one would have died or been injured.”
“Personally” Caused the Death of Another – MJOA
The evidence was sufficient to show that the defendant personally caused the death of the officers because the evidence showed that “defendant lured the murder victims into dealing with something that, through defendant’s own physical conduct, was disguised to look benign when it in fact was armed and deadly.” Although the defendant may not have triggered the bomb to explode he “designed the bomb in such a way that any number of other forces could detonate it, rendering someone else his unknowing and innocent agent for what was just the “final fatal act” in the homicidal sequence of actions.”
Jury Instructions – Causation and Foreseeability
The trial court properly denied the defendants request for special jury instructions regarding the causation element of aggravated murder because his instructions added issues dealing with “proximate cause” where intentional and aggravated murder only require prove of factual causation. Further, no instruction on the “foreseeability” of the explosion was necessary because foreseeability has no place in assessing factual causation in an intentional murder case and moreover, no place in assessing “responsibility for the intended consequences of a defendant’s act.”
“Acquittal First” Instruction Is Not Unconstitutional
“An acquittal-first instruction that directs the jury, consistently with ORS 136.460(2), to consider the charged offense first, and then to consider any lesser-included offenses only if it finds the defendant not guilty of the charged offense does not deprive the jury of consideration of the “third option.” Instead, consistently with the statute, the jury remains aware of and fully instructed on the elements of the lesser-included offense when it retires to deliberate."
State v. (Bruce) Turnidge, 359 Or. 507 (2016)In the Co-Defendant's Companion Opinion, the Oregon Supreme Court Answers the Co-Defendant's Same Assignments of Error Identically, While Also Addressing the Following Issues:
Anti-Government Views – Reference to the Oklahoma City Bombing- OEC 401
Like his co-defendant, evidence of defendant’s “longstanding anti-government sentiments, his professed desire to kill police officers,” and his supposed approval of the Oklahoma City bombings was relevant under OEC 401 because it all tended to support the state’s theory about why the defendant would want to plant a bomb designed to explode in the hands of enforcement officers.
Waiver of Right to Allocution – Not Plain Error
The Oregon Supreme Court refuses to consider defendant’s contention that the trial court’s colloquy regarding his right to allocution and his eventual waiver of that right as plain error because, even assuming that the issue raised is one of law, the Oregon Supreme Court ruled that the sufficiency of the trial court’s waiver was a legal point reasonably in dispute to which the record gives rise to competing inferences, thus making it inappropriate for plain error review.
Encouraging the Jury to “Silence the Defendant” is Not Necessarily an Improper Statement to Make During the Penalty Phase of a Capital Case
It was not inappropriate during the penalty phase of a capital trial for the prosecutor to encourage the jury to sentence the defendant to death as a way of silencing him, because the jury was required to address the question of defendant’s future dangerousness and the statement the prosecutor made was in addition to other statements referencing the defendant’s future willingness to commit crimes, and thus, his future dangerousness.
