374 P.3d 853 (Or. 2016), SC S059155, State v. Turnidge

Docket Nº:SC S059155
Citation:374 P.3d 853, 359 Or. 364
Opinion Judge:LINDER, S. J.
Party Name:STATE OF OREGON, Respondent, v. JOSHUA ABRAHAM TURNIDGE, Appellant
Attorney:Joshua B. Crowther, Chief Deputy Defender, Salem, argued the cause for appellant. With him on the brief was Peter Gartlan, Chief Defender, Office of Public Defense Services. Susan G. Howe, Assistant Attorney General, Salem, argued the cause and filed the brief for respondent. With her on the brie...
Judge Panel:Before Balmer, Chief Justice, and Kistler, Walters, Landau, Brewer, and Baldwin, Justices, and Linder, Senior Justice pro tempore.[*]
Case Date:May 05, 2016
Court:Supreme Court of Oregon
 
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Page 853

374 P.3d 853 (Or. 2016)

359 Or. 364

STATE OF OREGON, Respondent,

v.

JOSHUA ABRAHAM TURNIDGE, Appellant

SC S059155

Supreme Court of Oregon

May 5, 2016

Argued and Submitted June 17, 2015

CC 08C51758. On automatic and direct review of the judgment of conviction and sentences of death imposed by the Marion County Circuit Court. Thomas. M. Hart, Judge.

The judgment of conviction and sentences of death are affirmed.

Joshua B. Crowther, Chief Deputy Defender, Salem, argued the cause for appellant. With him on the brief was Peter Gartlan, Chief Defender, Office of Public Defense Services.

Susan G. Howe, Assistant Attorney General, Salem, argued the cause and filed the brief for respondent. With her on the brief were Ellen F. Rosenblum, Attorney General, Anna M. Joyce, Solicitor General, David B. Thompson, and Timothy A. Sylwester, Assistant Attorneys General.

Before Balmer, Chief Justice, and Kistler, Walters, Landau, Brewer, and Baldwin, Justices, and Linder, Senior Justice pro tempore.[*]

OPINION

[359 Or. 366] LINDER, S. J.

Defendant and his father were jointly charged and tried on 10 counts of aggravated murder and other felonies arising from their involvement in a bombing at a bank that killed two law enforcement officers and injured another law enforcement officer and a bank employee. A jury found them each guilty on all counts and determined that sentences of death should be imposed. The trial court thereafter entered separate judgments of conviction for defendant and his father, each of which included two sentences of death, one for each murder victim. On direct review under ORS 138.012, defendant raises 151 assignments of error, supplemented by additional pro se assignments, relating to the pretrial and guilt phases of his trial. He requests reversal of the judgment of conviction and remand for entry of a judgment of acquittal; he also, implicitly in the alternative, requests an order for a new trial. We affirm the judgment of conviction and sentences of death.1

I. FACTS AND PROCEDURAL BACKGROUND

In setting out the facts, we begin with those relating to the bombing itself, followed by information learned from the ensuing investigation. We then describe the resulting charges and the trial. Because a key issue relating to the evidence as a whole involves the trial court's denial of a motion for judgment of acquittal, we set out the facts in the light most favorable to the state, including all reasonable inferences that a jury could draw from those facts. State v. Cunningham, 320 Or. 47, 63, 880 P.2d 431 (1994), cert den, 514 U.S. 1005, 115 S.Ct. 1317, 131 L.Ed.2d 198 (1995); see also State v. Brown, 310 Or. 347, 350, 800 P.2d 259 (1990) (because jury found defendant guilty, in assessing sufficiency of evidence relating to motion for judgment of acquittal, court viewed evidence in light most favorable to state). We describe additional facts later in this opinion as they relate to particular assignments of error.

[359 Or. 367] A. The Bombing

Shortly before 10:30 a.m. on Friday, December 12, 2008, a man called a Wells Fargo Bank in Woodburn and told the teller who answered, " If you value your life and the life of your employees, you need to * * * get out because I'm going to kill you, you * * * are all going to die." The caller told the teller to have all employees leave the bank and check the outside garbage area, where they would find a plastic bag containing a cell phone; he explained that he would then call that phone to tell them what to do next. He also stated either that he had called or was going to call a neighboring bank, West Coast Bank, with similar instructions.2 The caller spoke calmly, had no accent, and--in the teller's estimation--was likely in his thirties or forties.

The teller called 9-1-1, and detectives from the Woodburn Police Department responded. The detectives checked the outside garbage area and found several large black plastic trash bags and a zipper-style bag containing a cell phone. Concerned that the phone might be an explosive device, they called for bomb technicians. Trooper William Hakim from the Oregon State Police and an FBI special agent responded; they examined and x-rayed the phone and confirmed that it was not an explosive device. Another law enforcement officer then took the phone to the Woodburn Police Department, and Trooper Hakim and the FBI special agent left the scene.

Because the caller had mentioned the neighboring West Coast Bank, a detective called dispatch and confirmed that that bank had reported no threatening phone call. Other detectives on the scene spoke with West Coast Bank employees and checked that bank for suspicious packages. In walking the exterior of West Coast Bank, one detective noticed a large metal box among some bushes, within one to a few feet of an exterior bank window, on a side of the bank that faced a sidewalk and a residential street. The box was painted green and looked like a landscaping utility box or part of a sprinkler system. It was almost square or [359 Or. 368] cube-like in shape, measuring about 11 and 1/2 inches deep by 11 inches wide, and 15 inches high, with a nonopening " lid" that created an appearance of a box top. The detective rotated the box 180 degrees, thinking that, if it were a utility box, it would not rotate. As the box rotated, an attached wire popped out from underneath it. The wire was painted the same green color and appeared to have been buried in bark dust. In addition to rotating the box, the detective held it by its lidded top and shifted the box slightly.

In response to police questions about whether the box was recently placed or already had been in that location, a bank employee, Perkett, and the bank branch manager, Taylor, each looked at the box. Perkett lifted it slightly, and Taylor tipped it to a 45-degree angle. A welded, uneven grid with openings to the inside, fashioned from flat stock metal, crossed the underside. Viewed from underneath, looking through that grid, the box appeared mostly hollow. With the box tipped, Taylor could see wires inside the hollow area, as well as what looked like a secured motorcycle battery. He also saw a toggle switch on the outside of the box. Taylor and Perkett told the detective that they had not seen the box before, and Perkett then tried to reach the bank's landscaper who had worked at the bank the previous Sunday. After several hours, the landscaper arrived and said that the box was not his and had not been there before, which prompted law enforcement to treat the box as a suspicious device. They photographed it, recalled the bomb squad, and Trooper Hakim again responded. While Trooper Hakim was assessing the device, Chief Scott Russell and Captain Thomas Tennant from the Woodburn Police Department--who had been monitoring the situation throughout the day--arrived to assist as needed.

Trooper Hakim inspected the device, including turning it upside down and x-raying it, but the x-ray was not conclusive. He ultimately concluded that the device--which, as noted, appeared to be hollow except for the secured motorcycle battery inside--was a " very good hoax device." 3 So that [359 Or. 369] it could be taken into evidence for investigatory purposes, Trooper Hakim decided to dismantle the device to ensure that it was safe.

By then, it was around 5:00 p.m. and was growing dark, and the weather was cold and rainy. To get out of the weather and darkness, Trooper Hakim moved the device inside West Coast Bank, which by then had closed to customers. All employees, except Taylor and Perkett, left the bank; meanwhile, various law enforcement officers moved in and out of the bank. Eventually, only Perkett, Taylor, Trooper Hakim, Chief Russell, and Captain Tennant remained inside the bank, with Captain Tennant assisting Trooper Hakim with the device, which had been placed on the floor with the grid side face-up, and Chief Russell observing from nearby. Taylor went into a conference room to take an incoming phone call, and Perkett, who was standing in the same open area as the others, prepared to leave.

Trooper Hakim and Captain Tennant tried without success to remove bolts that appeared to hold the lid on the device, and then Trooper Hakim used a crowbar to pry on the lid. Hitting either the device or the crowbar with a hammer, he succeeded in slightly moving the lid. He stated, " There, I got it." A second or so later, the device exploded, causing extensive damage to the immediate area inside the bank and violently projecting shrapnel through the windows, walls, and roof, and outside onto the road and into a nearby parked car and a residence.

Other law enforcement officers working outside the bank rushed inside. Trooper Hakim and Captain Tennant had suffered horrific injuries, and were dead. Chief Russell was alive...

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