State v. Acremant

• Decision Date: 17 March 2005
• Citation: 338 Or. 302,108 P.3d 1139
• Parties: STATE of Oregon, Respondent, v. Robert James ACREMANT, Appellant.
• Court: Oregon Supreme Court

108 P.3d 1139

338 Or. 302

STATE of Oregon, Respondent, v. Robert James ACREMANT, Appellant.

(CC9951331C1; SC S44772).

Supreme Court of Oregon.

Argued and Submitted July 21, 2004.

Decided March 17, 2005.

Eric Johansen, Deputy Public Defender, Salem, argued the cause for appellant. With him on the appellant's brief was David E. Groom, Public Defender. With him on the appellant's supplemental brief were Peter A. Ozanne, Executive Director, Office of Public Defense Services. With him on the appellant's reply brief were Peter A. Ozanne, Executive Director, and Peter Gartlan, Chief Defender, Office of Public Defense Services.

Robert J. Acremant, pro se, filed the appellant's pro se second supplemental brief and reply brief.

Janet A. Metcalf, Assistant Attorney General, Salem, argued the cause for respondent. With her on the briefs were Hardy Myers, Attorney General, Mary H. Williams, Solicitor General, and Kaye E. McDonald, Assistant Attorney General.

Before CARSON, Chief Justice, and GILLETTE, DURHAM, RIGGS, DE MUNIZ, and BALMER, Justices.¹

CARSON, C. J.

This case is before us on automatic and direct review of defendant's convictions for four counts of aggravated murder involving two victims and his sentences of death. See former ORS 163.150(1)(g) (1997), repealed by Or Laws 1999, ch 1055, § 1;² ORAP 12.10 (providing for such review). Defendant asks this court to reverse his convictions and sentences of death or, alternatively, to vacate his sentences of death and remand for resentencing. We affirm the judgment of conviction and the sentences of death. Because the trial court erred by entering more than one aggravated murder conviction for each victim, however, we remand the case for entry of a corrected judgment of conviction to reflect defendant's guilt as to the charge of aggravated murder for each victim based upon alternative aggravating factors.

I. FACTS AND PROCEDURAL BACKGROUND

As discussed below, defendant pleaded guilty to four counts of aggravated murder for the deaths of two victims. The state introduced evidence of the following facts relating to those murders during defendant's subsequent penalty trial.

Defendant murdered Roxanna Ellis ("Ellis") and Michelle Abdill ("Abdill") in Medford, Oregon, on December 4, 1995. Before her death, Ellis had operated a property management company with her daughter, Lori Ellis ("Lori"). On the morning of December 4, Ellis left her office for an 11:00 a.m. appointment to show a residence on Sheraton Court in Medford. When Ellis later missed a 2:00 p.m. appointment scheduled for that day, Lori became concerned for her mother. Lori repeatedly paged and called Ellis on her cellular telephone but initially received no response. Eventually, at about 4:00 p.m. that afternoon, Ellis telephoned Lori and told Lori that she was doing some shopping. Lori testified that Ellis normally responded immediately to any page or telephone call from Lori and that Ellis was uncharacteristically quiet during their telephone conversation. When Lori asked Ellis why she had missed her 2:00 p.m. appointment, Ellis responded that she must have had the wrong address. When Lori asked Ellis why she had not answered Lori's pages and telephone calls, Ellis responded that all the telephone circuits must have been busy.

Abdill was Ellis's domestic partner. At about 4:30 p.m. on December 4, Abdill received a telephone call at her workplace. After she got off the telephone, Abdill informed a coworker that Ellis had a problem with her vehicle and that Abdill was leaving to help her. Abdill also left a message on Lori's telephone answering machine, stating that she was going to help Ellis with a dead battery and that she would call Lori back to let her know what was happening.

Later that night, after she did not hear from either Ellis or Abdill again, Lori drove to the Sheraton Court residence where Ellis had had her 11:00 a.m. appointment. When she turned on to Sheraton Court, Lori saw Ellis's pickup truck driving away. Lori attempted to follow the truck and to get the driver's attention by honking and flashing her lights, but the driver did not stop and eventually eluded her. After she lost sight of the truck, Lori stopped at a service station and called Abdill's mother to tell her that "something was wrong." Lori then returned to the Sheraton Court residence, where she met with Dan Abdill ("Dan"), Abdill's brother. After finding Abdill's unlocked vehicle parked in front of that residence with Abdill's purse in plain view, Lori and Dan contacted the police.

During their subsequent investigation of the disappearance of Ellis and Abdill, the police interviewed two neighbors of the Sheraton Court residence, Toni Newman ("Newman") and her then-14-year-old son Chris Newman ("Chris"), who also were tenants of Ellis. Chris reported that, on the afternoon of December 4, he had seen Ellis's truck parked in front of the Sheraton Court residence and then, later that evening, backed into the garage of that residence. Chris also reported that, on that same afternoon, he had spoken with a man — whom he identified during the penalty trial as defendant — in the driveway of the Sheraton Court residence. Chris reported that the man had told Chris that he was going to be Chris's new neighbor and that he was moving a few things. Newman also reported that, when she returned home from work on the evening of December 4, she had seen a man in front of the Sheraton Court residence. Both Newman and Chris described the man whom they had seen in front of the Sheraton Court residence to a police sketch artist.

On December 7, 1995, Ellis's truck was located in a parking lot in Medford. The bodies of Ellis and Abdill were discovered in the bed of the truck, wrapped in drapes and covered by cardboard boxes and an assortment of other things. The bodies of both women had been bound with duct tape, and both women had been shot twice in the head. A witness, Van Duser, reported to the police that, on the evening of December 4, he had seen and spoken with a man — whom he identified during the penalty trial as defendant — who had parked Ellis's truck in that parking lot and then walked away. Van Duser also described the man whom he had seen in the parking lot to a police sketch artist.

On December 10, 1995, defendant's mother, Bradshaw, contacted the police to report her fear that defendant might be responsible for the murders of Ellis and Abdill based upon defendant's behavior on the day of their disappearance and his resemblance to the composite sketch that the police had publicized of the suspect in the case. Bradshaw informed the police that she recently had moved from California to Medford with defendant and that, when they first had arrived in Medford, Ellis had taken them to view the residence on Sheraton Court. During that interview, Bradshaw showed the police cardboard boxes that she had used during her move to Medford. The police recognized address labels on those boxes as matching address labels found on boxes covering the victims' bodies in Ellis's truck.

That same day, the police interviewed defendant's brother, Kenneth Acremant, Jr. ("Kenneth Jr."), who also resided in Medford. Kenneth Jr. reported that, before the disappearance of Ellis and Abdill, defendant had made a telephone call from Kenneth Jr.'s workplace, the "Tiki Lodge." A caller identification device on Ellis's telephone showed that Ellis had received a telephone call from the "Tiki Lodge."

Subsequently, after obtaining a copy of defendant's fingerprints from the California Department of Justice, the police identified fingerprints found on the duct tape wrapping the victims' bodies as belonging to defendant. The police also identified fingerprints found inside the Sheraton Court residence as belonging to defendant. In addition, the police determined that a footprint found on the bumper of Ellis's truck was consistent with tennis shoes that belonged to defendant.

At approximately 4:15 a.m. on December 13, 1995, defendant was arrested in Stockton, California. Pursuant to a warrant, the police searched the motel room where they had found and arrested defendant. During that search, the police discovered a .25 caliber gun that later proved to be the weapon used in the murders of Ellis and Abdill. The police also found a homemade silencer device covered with DNA material that later proved to be consistent with being a mixture of DNA material from both Ellis and Abdill.

Subsequently to his arrest, defendant made several statements to the police in which he confessed to the murders of Ellis and Abdill, as well as confessed to the unrelated murder of a man, Scott George ("George"), in Visalia, California. In his statements about the Ellis and Abdill murders, defendant told the police that, on the morning of December 4, 1995, he had used the telephone at the Tiki Lodge to set up an 11:00 a.m. appointment with Ellis to view the residence on Sheraton Court as part of a robbery plan. Defendant reported that he had targeted Ellis because he had thought that her position as a property manager would give her access to large sums of cash. When Ellis met defendant at the Sheraton Court residence, defendant handcuffed her and took her purse, but came to realize over the course of the day that Ellis lacked means to make immediate withdrawals of cash from either her credit cards or from the bank accounts of the property management company. Eventually, defendant allowed Ellis to telephone her daughter to explain her absence from the office. In an effort to salvage his robbery plan, defendant also directed Ellis to telephone Abdill and to ask Abdill to come to the Sheraton Court residence. After Abdill arrived, defendant tied up and gagged both women. Later that evening, he forced Ellis and Abdill to climb into the back of Ellis's truck. Defendant subsequently shot both women twice, drove them to the parking lot where their bodies later were discovered, and then...