800 P.2d 259 (Or. 1990), SC S35743, State v. Brown

Docket Nº:CC C87-12-36938/SC S35743.
Citation:800 P.2d 259, 310 Or. 347
Opinion Judge:GRABER, J.
Party Name:STATE of Oregon, Respondent, v. Cornelius Leamonza BROWN, Appellant.
Attorney:John P. Daugirda, Deputy Public Defender, Salem, argued the cause for appellant. With him on the briefs was Sally L. Avera, Public Defender, Salem. Brenda J Peterson, Assistant Attorney General, Salem, argued the cause for respondent. Diane S. Lefkow, Assistant Attorney General, Salem, filed the ...
Case Date:September 20, 1990
Court:Supreme Court of Oregon
 
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Page 259

800 P.2d 259 (Or. 1990)

310 Or. 347

STATE of Oregon, Respondent,

v.

Cornelius Leamonza BROWN, Appellant.

CC C87-12-36938/SC S35743.

Supreme Court of Oregon, En Banc

September 20, 1990

Page 260

Argued and Submitted May 4, 1990.

Page 261

[310 Or. 348B] John P. Daugirda, Deputy Public Defender, Salem, argued the cause for appellant. With him on the briefs was Sally L. Avera, Acting Public Defender, Salem.

Brenda J. Peterson, Asst. Atty. Gen., Salem, argued the cause for respondent. Diane S. Lefkow, Asst. Atty. Gen., Salem, filed the brief for respondent. With them on the brief were Dave Frohnmayer, Atty. Gen., Virginia L. Linder, Sol. Gen., and Timothy A. Sylwester and Richard D. Wasserman, Asst. Attys. Gen., Salem.

[310 Or. 349] GRABER, Justice.

A jury convicted defendant of aggravated murder of a witness, ORS 163.095(2)(a)(E)

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, 1 felony murder, ORS 163.115(1)(b)(C) and (F), 2 burglary in the first degree, ORS 164.225, 3 and kidnapping in the first degree, ORS 163.235. 4 After the jury answered in the affirmative the three penalty phase questions put to it on the aggravated murder count, the [310 Or. 350] court entered a judgment of conviction and sentenced defendant to death under ORS 163.150(1)(a) (1987). 5 The case is before us on automatic and direct review. ORS 163.150(1)(f) (1987). Defendant asks us to reverse his convictions or, in the alternative on the aggravated murder count, to vacate the sentence of death. We reverse defendant's conviction of aggravated murder of a witness, remand with instructions, and affirm his convictions of felony murder, burglary, and kidnapping.

Because the jury found defendant guilty, we view the evidence in the light most favorable to the state. State v. King, 307 Or. 332, 339, 768 P.2d 391 (1989). On November 30, 1987, Hope Anderson disappeared. She and defendant had been involved in a romantic relationship for about four years. Their relationship deteriorated markedly during 1987; defendant repeatedly threatened and beat her. Sometime in 1987, defendant told a friend that he intended to have someone kill Anderson, wrap her in chains, and throw her body into the river.

In September 1987, police interviewed Anderson and her daughter about the daughter's allegations that defendant had raped her several times while she was between 12 and 15 years old. The jury did not learn the details of those allegations at the guilt phase of the trial, however; testimony was limited to the fact that Anderson and her daughter were expected to be witnesses against defendant in an ongoing felony investigation. The investigation was awaiting presentation to the grand jury when Anderson disappeared.

Shortly after the interview about her daughter's allegations of rape, Anderson

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told police that defendant knew of the investigation and had threatened her. She gave them two grocery bags of prescription drugs and some documents, which she said were records of defendant's drug-dealing activities. Anderson asked that the evidence be used to put defendant in jail, so that she would feel safe. The police examined the [310 Or. 351] evidence and gave it to defendant's probation officer. As a result, a hearing was scheduled to determine whether defendant's probation should be revoked. The hearing did not take place until after Anderson's disappearance.

The day after turning over the drugs to the police, Anderson filed for a restraining order against defendant. After a week, she had the restraining order vacated, because defendant had threatened to take away a young child for whom she had been caring since his birth. In the meantime, Anderson had reported to the police that defendant had appeared at her home, that the restraining order was the only means that she had to keep defendant away from her, and that she feared for her life.

On October 17, 1987, defendant beat and injured Anderson. A neighbor took her to the hospital for treatment. The neighbor testified, without a hearsay objection, that Anderson said that defendant had threatened to kill her, because she was going to testify against him on either a drug or assault charge. On Monday, October 19, Anderson filed assault and menacing charges against defendant. He was arrested and arraigned the same day, and later he was released. The following day, Anderson obtained a second restraining order.

Defendant requested a jury trial on the assault and menacing charges. The court set the trial for December 4, 1987. Because of Anderson's disappearance, the state could not proceed, and the charges eventually were dismissed.

On November 8, 1987, Anderson reported to police that defendant had tried to force her to enter his car and had threatened to kill her if she ran away. On November 23, defendant contacted the police to report that Anderson was harassing employees at a restaurant that he owned. He said that, if the police did not do something about it, he would kill Anderson. Defendant filed a motion to modify Anderson's restraining order. The modification hearing was scheduled for the day on which Anderson disappeared.

On the evening of November 29, 1987, Anderson ate dinner at home with her children, her daughter's boyfriend, and her sister-in-law. Anderson had prevailed upon the sister-in-law to move in with her temporarily, because she feared [310 Or. 352] defendant. The sister-in-law's boyfriend also arrived later in the evening. All of these family members and friends stayed in the Anderson home on the night of November 29. Although Anderson routinely barricaded the back door to prevent defendant from entering the house with a key that he still had, she did not do so that night, because of a scarcity of keys and because of concerns about her guests' schedules.

At about 4 a.m. on November 30, a commotion awakened the people who were staying at Anderson's home, as well as some of the neighbors. One of Anderson's sons testified that he heard his mother screaming. He saw defendant outside his mother's bedroom and heard defendant threaten her in an angry voice. Defendant told Anderson to shut up or he would kill her. Then the son saw defendant take Anderson outside and push her into his car while holding her by the arm and hair. Defendant drove away.

Meanwhile, others were awakening. The sister-in-law heard Anderson say "no" several times. The sister-in-law's boyfriend saw defendant walking Anderson down the sidewalk toward the car; he had his arm locked through hers, and she was screaming. Anderson's daughter, who had run downstairs, saw defendant's car going down the street. She could see defendant hitting Anderson in the face as he drove. A neighbor heard screams and reported that defendant was on the street holding Anderson by the hair and arm. Defendant slapped her, knocking her to the ground, and said, "Shut your mouth, bitch." Another neighbor heard loud voices and saw a

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car that matched the description of defendant's.

Anderson has not been seen or heard from since the early morning of November 30, 1987. Her body has never been discovered.

A search of defendant's car, conducted shortly after Anderson's disappearance, revealed two light brown hairs with reddish-blonde dye lines, which were found in the trunk. The colors of the hairs and the location of the dye lines were consistent with Anderson's hair. There was a muddy spare tire on the floor of the passenger compartment, behind the driver's seat, but no spare tire in the trunk.

After his arrest, defendant shared a cell with Bates, who was being held on a burglary charge. Bates learned why [310 Or. 353] defendant was being detained when he read a newspaper account of Anderson's abduction. When another prisoner, in commenting about the article, asked defendant if he was still "messing with" Anderson, defendant replied that "she wasn't no trouble no more, you know, that, you know, [I] cut her loose." Defendant talked to Bates about whether searchers "would find what they're not supposed to" during a search of the Columbia River for two missing boaters. According to Bates, defendant later said that "he had put her in a place where * * * the gang had dumped some bodies there before and nobody ever found them so he really wasn't worried about it."

On appeal, defendant raises 16 assignments of error, of which 7 relate to the penalty phase of the trial. In addition, the state in its Respondent's Brief brought to light an additional issue. We turn first to the state's point and then to defendant's arguments.

INSTRUCTION ON AGGRAVATED MURDER OF A WITNESS

Defendant was convicted of aggravated murder of a witness. ORS 163.095(2)(a)(E) (set out ante at note 1). In State v. Maney, 297 Or. 620, 623, 688 P.2d 63 (1984), this court noted that the statute "contains two independent requirements: The victim must fit into one of the designated categories and the murder must be 'related to the performance of the victim's official duties in the justice system.' "

"The second element of ORS 163.095(2)(a), that the murder be 'related to' the victim's official duties in the justice system, focuses on the defendant's purpose for the murder. It requires the state to prove a causal connection between the murder and the victim's status as a witness, juror, police officer or other targeted category. If, for example, a person intentionally kills someone without knowledge that the victim was a member of one of the designated classes, or for a reason unrelated to that status, the requisite causal connection would not have been met and a charge of aggravated murder would not have been stated." 297 Or. at 626, 688 P.2d 63 (emphasis supplied).

The trial judge gave this instruction on the elements of aggravated murder of a witness:

"Let's move now to Instruction No. 13 which deals...

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