880 P.2d 431 (Or. 1994), SC S39759, State v. Cunningham

Docket Nº:CC 91CR2626FE; SC S39759.
Citation:880 P.2d 431, 320 Or. 47
Party Name:STATE of Oregon, Respondent, v. Clinton Wendell CUNNINGHAM, Appellant.
Case Date:September 09, 1994
Court:Supreme Court of Oregon
 
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Page 431

880 P.2d 431 (Or. 1994)

320 Or. 47

STATE of Oregon, Respondent,

v.

Clinton Wendell CUNNINGHAM, Appellant.

CC 91CR2626FE; SC S39759.

Supreme Court of Oregon, En Banc

September 9, 1994

Argued and Submitted May 9, 1994.

Page 432

[320 Or. 48A] David E. Groom, Deputy Public Defender, Salem, argued the cause for appellant. With him on the brief were Sally L. Avera, Public Defender, and Stephen J. Williams, Deputy Public Defender.

Kaye E. Sunderland, Asst. Atty. Gen., Salem, argued the cause for respondent. With her on the brief were Theodore R. Kulongoski, Atty. Gen., Virginia L. Linder, Sol. Gen., and Janet A. Metcalf and Brenda JP Rocklin, Asst. Attys. Gen.

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[320 Or. 49] VAN HOOMISSEN, Justice.

This is an automatic and direct review of a judgment of conviction of aggravated murder and sentence of death. See ORS 163.150(1)(g) (providing for automatic and direct review in the Supreme Court); ORAP 12.10 (automatic review in death sentence cases). Defendant seeks reversal of his conviction for aggravated murder. In the alternative, he asks this court to vacate his sentence of death. We affirm the judgment of conviction and the sentence of death.

FACTS

The jury found defendant guilty. We therefore view the evidence in the light most favorable to the state. State v. McDonnell, 313 Or. 478, 480, 837 P.2d 941 (1992).

On October 19, 1991, Larry Moyer drove his friend Shannon Faith to a place north of Coos Bay, from where Faith intended to hitchhike to Eugene. On that date, defendant, Travis Allison, and Troy Johnson were traveling in the Coos Bay area in a truck driven by defendant. Defendant displayed a knife to Johnson. Defendant and Allison discussed not having enough money for gas. The three men decided to drive to the nearby sand dunes. On the way, they saw Faith hitchhiking and offered her a ride. Faith agreed to accompany the men to the dunes. Between 3:00 and 5:00 p.m., the group drove to Johnson's house in Coos Bay. Johnson and Allison remained at Johnson's house.

About 7:30 p.m., defendant and Faith went to Larry Moyer's house in defendant's truck. Faith introduced defendant to Moyer. Faith told Moyer that she was going to Eugene with defendant. Moyer tried to talk her out of leaving and wrote down defendant's name and truck license number. Moyer observed empty beer cans in the truck and noticed that Faith was slurring her words and was unable to walk straight. Faith and defendant left.

On October 20, about 5:30 a.m., defendant returned to Johnson's house. When Allison asked defendant if he "got him some last night," defendant grinned. He told Allison that he had taken Faith to a friend's house. After breakfast, defendant and Allison departed for Roseburg. On the way, they stopped at a store. At that time, defendant threw his [320 Or. 50] knife into a nearby creek, telling Allison that he did not need it anymore.

About 11:30 a.m. the same day, a motorist found Faith's body in a remote wooded area about nine miles west of Drain, Oregon. The body had been rolled about five feet down an embankment overgrown with blackberry bushes. The victim was lying on her back, her legs spread somewhat apart and flexed in a "froglike position." She had on a long-sleeved shirt and some socks, but no pants or underpants. Tests of samples taken from her body revealed the presence of spermatozoa and seminal fluid in her vagina. Medical examiners later found an abrasion near the victim's perineum, as well as series of four abrasions along the inside of her thigh, about six inches from her vulva, suggestive of fingernail scratches. A criminalist who helped the medical examiner swab the victim's mouth, vagina, and rectum, in order to test for the presence of seminal fluid or sperm, testified that she was "most anxious to get some vaginal swabs since it looked like a rape had taken place since [the victim] had no pants or panties on and her legs were apart." From the location of various bloodstains, it could be inferred that the victim had not been wearing pants at the time she was stabbed. An autopsy later revealed that she had been stabbed about 37 times, on her face, neck, breasts, back, abdomen, and hands, causing her to die from loss of blood. Some of the wounds were "defensive wounds," 1 indicating that she had tried to ward off the attack, and some of the wounds may have been inflicted at a point when she no longer was able to offer any significant resistance. Some of the wounds above and around her breasts suggested "the possibility of sexual mutilation in a perimortem or postmortem context."

The victim's pants and underpants were later found stuffed inside a tote bag that had

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been thrown into some blackberry bushes near the victim's body. Her pants had been turned inside out. Although the victim's legs were covered with blood, the outside of her pants had little or no blood on them. That led the state's criminologist to conclude that the victim's pants were down or off at the time of the knife attack. [320 Or. 51] Neither the victim's pants nor underpants had sperm or seminal fluid on them.

After hearing a news report that a body had been found, Moyer contacted the police and gave them defendant's name and truck license number. Soon thereafter, on seeing a picture of the victim on television and recognizing her as the hitchhiker that he, Allison, and defendant had picked up, Troy Johnson also contacted the police.

On October 21, defendant and Allison were stopped in Roseburg, where defendant was cited for violation of a city ordinance and Allison was arrested on an outstanding warrant. Later that day, the officer who stopped them discovered that defendant was a potential homicide suspect. Defendant's truck was located later by the Roseburg police, who discovered that defendant had traded it for a car.

On October 26, defendant was arrested in Oklahoma. Defendant initially admitted to having been in Oregon, but denied having owned a truck and also denied having had any contact with Shannon Faith. Defendant later admitted that he had driven the truck in Oregon. He told the police that on October 19 he had been drinking with Johnson and Allison, that they had picked up a female hitchhiker on the way to the dunes and that, after he had dropped off Johnson and Allison, he had met Moyer. He said that, about 20 minutes after he and the hitchhiker began driving to Eugene, they pulled off the road, she pulled down her pants, and they had consensual sexual relations. He denied forcing her to have sex with him at any time. He said that he and the hitchhiker then drove several more miles, that she kept turning up the radio, and that he kept turning it down. He then pulled his truck off the road to urinate and told her to get out of his truck. He stated that she grabbed his knife from the dashboard or glove box and came at him. He stated that he took the knife away from her, cutting her hand, but she continued coming at him and he kept pushing her away with the knife. He recalled making another wound that cut her throat and another wound in her back. He recalled stabbing her a total of three or four times. He stated that she fell to the ground and was having difficulty breathing and that some of her clothing came off as he dragged her to a ditch. He said he then threw her bags into the bushes and later threw his knife [320 Or. 52] into a creek and disposed of his bloody clothing in a dumpster in Roseburg. He agreed to perform a videotaped reenactment of what had happened.

The pathologist who performed the autopsy on the victim testified at trial that he had viewed defendant's videotape reenactment and found it to be inconsistent with the victim's injuries, because defendant had acted out the infliction of only a few of the victim's actual wounds.

Defendant's knife was recovered from the creek, and his clothing was recovered from a dumpster in Roseburg. The victim's bags were recovered from the bushes near where her body was found. The pants that she had been wearing on the day she died were found in one of her bags.

Defendant was indicted on two counts of aggravated murder. The first count alleged that the murder was committed intentionally in the course of and in furtherance of the crime of rape in the first degree. ORS 163.095(2)(d); 2 ORS 163.115(1)(b). 3 The second

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count alleged that the murder was committed intentionally in an effort to conceal the crime of rape in the first degree. ORS 163.095. 4 Defendant also [320 Or. 53] was indicted on one count of intentional murder, ORS 163.115(1)(a), 5 and two counts of rape in the first degree, ORS 163.375, see n 14, infra.

GUILT PHASE

After the state's case-in-chief, during which the evidence summarized above was presented, defendant moved for acquittal on the charges of aggravated murder and rape in the first degree on the ground that there was not enough evidence from which a jury could find beyond a reasonable doubt that rape by forcible compulsion had occurred. The trial court denied the motion.

At the close of all the evidence, the court instructed the jury on the charged offenses and on the lesser-included crime of manslaughter in the first degree. ORS 163.118(1)(a). 6 Defendant requested that the jury also be given a standard instruction on manslaughter in the second degree. ORS 163.125(1)(a). 7 UCrJI No. 1309. The trial court refused to give that instruction. The jury returned a verdict of guilty on all counts.

PENALTY PHASE

Defendant made a pretrial motion "To Require The State To Disclose All Information Of Disproportionality." In that motion defendant asked that the state be required to disclose:

[320 Or. 54] "1. The defendant's name and case number for each homicide prosecution in which a violation of ORS 163.115 and...

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