837 P.2d 941 (Or. 1992), SC S38177, State v. McDonnell

Docket Nº:CC J85-0004; SC S38177.
Citation:837 P.2d 941, 313 Or. 478
Opinion Judge:FADELEY, J.,
Party Name:STATE of Oregon, Respondent, v. Michael Martin McDONNELL, Appellant.
Attorney:Stephen J. Williams, Deputy Public Defender, Salem, argued the cause and filed the brief for appellant. With him on the brief were Sally L. Avera, Public Defender, and Diane L. Alessi, Deputy Public Defender, Salem. Brenda J Peterson, Assistant Attorney General, Salem, argued the cause and filed ...
Case Date:July 09, 1992
Court:Supreme Court of Oregon
 
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Page 941

837 P.2d 941 (Or. 1992)

313 Or. 478

STATE of Oregon, Respondent,

v.

Michael Martin McDONNELL, Appellant.

CC J85-0004; SC S38177.

Supreme Court of Oregon, En Banc

July 9, 1992

Page 942

Argued and Submitted March 2, 1992.

Page 943

Stephen J. Williams, Deputy Public Defender, Salem, argued the cause and filed the brief for appellant. With him on the brief were Sally L. Avera, Public Defender, and Diane L. Alessi, Deputy Public Defender, Salem.

Brenda J. Peterson, Asst. Atty. Gen., Salem, argued the cause and filed the brief for respondent. With her on the brief were Charles S. Crookham, Atty. Gen., Virginia L. Linder, Sol. Gen., and Janet A. Metcalf and Robert B. Rocklin, Asst. Attys. Gen., Salem.

[313 Or. 480] VAN HOOMISSEN, Judge.

This is an automatic and direct review of a judgment of conviction of aggravated murder and sentence of death. Former ORS 163.150(1)(f) (1987) (now ORS 163.150(1)(g)). Defendant seeks reversal of his conviction for aggravated murder. Alternatively, he asks this court to vacate his sentence of death. We affirm defendant's conviction. We vacate his sentence of death and remand this case to the circuit court for further proceedings consistent with this opinion.

SUMMARY OF FACTS

The jury found defendant guilty. We therefore view the evidence in the light most favorable to the state. State v. Rose, 311 Or. 274, 276, 810 P.2d 839 (1991).

In 1984, defendant was charged with the aggravated murder of Joey Keever after defendant had escaped from a state penal or correctional facility. ORS 163.095(2)(f). 1

Defendant previously had been committed to the Oregon State Penitentiary and was received there on May 16, 1984. He was assigned to the Farm Annex on November 9 and escaped from custody on November 21. He was still an escapee on the day he killed Keever.

In 1986, the trial court set aside the indictment against defendant, concluding that ORS 163.095(2)(f) violated Article I, sections 16 and 20, of the Oregon Constitution, and the Eighth Amendment to the Constitution of the United States, because it imposed an unconstitutional sentence. The Court of Appeals reversed and remanded the case for trial, concluding that "[t]he fact that a sentencing statute authorizes imposition of an arguably unconstitutional sentence does not mean that the statute defining the crime violates any of the * * * constitutional provisions [cited by the trial [313 Or. 481] court]." State v. McDonnell, 84 Or.App. 278, 281, 733 P.2d 935, rev. den. 303 Or. 455, 737 P.2d 1249 (1987).

At his trial in 1988, defendant stipulated that he caused Keever's death by cutting her with a knife. His defense was that he did so while in a drug-induced psychosis and that, while he was in that condition, he was unable to form the intent necessary to commit the crime of aggravated murder and that, therefore, he was guilty only of the crime of manslaughter.

Martin and Jennifer Thompson testified for the state that on December 22, 1984, they were driving to a livestock auction. They stopped to observe a pickup at the railroad tracks on Boswell Springs Road near Drain. They thought that the pickup had been in an accident because it was parked against the tracks. Martin Thompson left his car to investigate and saw defendant with a knife in his hand and blood on himself. Defendant told Thompson "to get the hell out of there." As Thompson returned to his car to get a gun, defendant threw Keever out of the pickup,

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slashed at her with the knife, and drove off at high speed.

Keever got up and ran toward the Thompsons. Her throat had been cut. The Thompsons placed Keever in their car and drove her to the Drain fire station, where a volunteer ambulance crew commenced life-saving measures. Keever was dead on arrival at the Douglas Community Hospital.

The cause of death was loss of blood, primarily due to the severing of Keever's neck vessels. Dr. Roos, who performed the autopsy, found 40 knife wounds on Keever's body, including multiple wounds to the chin, neck, hands, chest, and abdomen. Keever had eight stab wounds on her right hand and 13 on her left. Roos characterized them as "defense" wounds, which he described as occurring "where someone is grabbing for something and then it's pulled away and then it just slices through, here, there, everywhere." On the day after Keever's death, Deputy Sheriff Cannaday arrested defendant. At the time, defendant had scratches on his face and some cuts on the back of his right index and middle fingers. A criminalist testified for the state that he would not consider these cuts to be "defensive wounds," because the wounds were on the backs of defendant's fingers. [313 Or. 482] Samples of head hair, fingernails, and blood were taken from defendant. His hair matched strands of head hair found intertwined in the fingers of each of Keever's hands. Blood found on the back of defendant's pants matched Keever's blood.

After a jury trial, defendant was found guilty of aggravated murder. In a separate sentencing hearing, the jury answered in the affirmative the three questions then posed by former ORS 163.150(1)(b). See post, at 958. The trial court then entered an "order" sentencing defendant to death. ORS 163.150(5). Later, pursuant to leave granted by this court, State v. McDonnell, 306 Or. 579, 761 P.2d 921 (1988), the trial court entered a judgment of conviction and sentence of death.

This is the second time that this court has reviewed defendant's conviction and sentence. Although defendant first challenged his conviction and death sentence on several grounds, the parties agreed to limit his first review by addressing only whether the trial court had erred in denying defendant's motion to require the district attorney to offer him an opportunity to plead to the charge of aggravated murder and to receive a life sentence under former ORS 163.150. Defendant argued that the district attorney had abdicated his prescribed role in the plea discussion process, ORS 135.405 et seq., and allowed it to be usurped by the victim's parents.

In State v. McDonnell, 310 Or. 98, 105, 794 P.2d 780 (1990), this court found a statutory violation of ORS 135.415, because "the victim's parents' wishes were the controlling factor in the district attorney's decision [not to accept defendant's plea offer]." Accordingly, this court vacated the judgment and remanded the case to the trial court "for an evidentiary hearing to determine how the [district attorney] would have exercised his judgment and discretion on the basis of proper criteria and the facts that existed at the time he declined to enter into the plea agreement." Id. at 106, 794 P.2d 780. This court directed that:

"If, after hearing the evidence, the trial court finds that the district attorney would have reached the same decision to proceed with the prosecution of the accused on proper grounds, then the judgment of conviction and sentence of [313 Or. 483] death shall be reinstated and an appeal therefrom may proceed. If, however, the trial court finds that the [district attorney] would have accepted the negotiated plea, then, as the state concedes, the defendant shall be permitted to enter a plea of guilty to the crime of aggravated murder and the trial court shall sentence him to life imprisonment." Id. at 106-07, 794 P.2d 780.

On remand, the trial court found:

"Upon a review of the testimony and evidence presented, the record supports the Court finding that had the prosecutor considered the following criteria, which the Court finds to be proper, to the facts that existed at the time he decided

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[whether] to enter into the plea agreement, he would have proceeded with the prosecution:

"1) The emotional and mental well-being of the victim's family.

"2) Genuine legal question as to the lawfulness or unlawfulness of plea bargaining certain offenses.

"3) The reduction of the quality of evidence caused by litigation delay.

"4) The need for a strong response by the State for a particularly outrageous act against a victim and the community at large.

"5) Whether the death penalty in the state of Oregon is in actual practice, a reasonably expected result such to justify a long, arduous trial.

"6) The attempt to resolve cases that demand large amounts of court time and its impact on the effective administration of justice.

"7) The allowance of a guilty plea and/or a defendant's acceptance of responsibility for his actions and its positive impact on the rehabilitative process.

"Accordingly, the Court finds that based on the above proper criteria, the prosecutor would have proceeded to trial in the case." (Emphasis added.)

We interpret the trial court's quoted findings to mean that, after hearing the evidence on remand, the court found that, had the district attorney not deferred to the wishes of the victim's family in 1986, i.e., had he acted independently, after considering the appropriate criteria, he would have reached the same decision to proceed with the prosecution of the [313 Or. 484] defendant. Based on those findings, and pursuant to this court's directive in State v. McDonnell, supra, 310 Or. at 106-07, 794 P.2d 780, the trial court reinstated the judgment of conviction and sentence of death previously ordered. This second automatic review proceeding was then filed in this court.

We proceed now to consider defendant's assignment alleging error on remand, as well as his other assignments of error that were not considered during our first review.

  1. PRE-TRIAL MOTIONS

    Motion to Compel Plea Offer

    Defendant contends that the trial court erred on remand in denying his motion to require the district attorney to offer him an opportunity to plead to the charge of aggravated murder and to receive a life sentence under former ORS 163.150. He argues that the...

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