State v. Bockorny

• Decision Date: 22 December 1993
• Citation: 125 Or.App. 479,866 P.2d 1230
• Parties: STATE of Oregon, Respondent, v. Randy Charles BOCKORNY, Appellant. C90-08-34879 and C89-10-35768; CA A69266 (Control) and CA A69267.
• Court: Oregon Court of Appeals

Page 1230

866 P.2d 1230

125 Or.App. 479

STATE of Oregon, Respondent, v. Randy Charles BOCKORNY, Appellant.

C90-08-34879 and C89-10-35768; CA A69266 (Control) and CA A69267.

Court of Appeals of Oregon.

Argued and Submitted April 9, 1993.

Decided Dec. 22, 1993.

[125 Or.App. 480-A] Michael E. Swaim argued the cause for appellant. With him on the brief was Michael E. Swaim, P.C.

Robert B. Rocklin, Asst. Atty. Gen., argued the cause for respondent. With him on the brief were Theodore R. Kulongoski, Atty. Gen., and Virginia L. Linder, Sol. Gen.

Before ROSSMAN, P.J., and De MUNIZ and LEESON, JJ.

De MUNIZ, Judge.

Defendant and his wife, Debra Bockorny, were convicted in separate trials of the homicide of Deborah Spicer. We affirmed Debra's convictions. State v. Bockorny, 124 Or.App. 585, 863 P.2d 1296 (1993). Defendant appeals his convictions for aggravated felony murder (first degree sodomy), aggravated felony murder (first degree sexual abuse), aggravated murder/concealment (first degree sodomy), aggravated murder/concealment (first degree sexual abuse), aggravated murder/concealment (attempted first-degree sexual abuse), intentional murder and felony murder. ORS 163.095; ORS 163.115. The jury rejected the state's request for the death penalty. The court sentenced defendant to life in prison with concurrent 30-year mandatory minimum terms on the aggravated murder counts and a 20-year mandatory minimum term on the felony murder count. ¹ We affirm.

Defendant and his wife met Spicer in a bar after a day of heavy drinking. ² Debra is bisexual. The three eventually ended up at the Bockorny residence, where Spicer was murdered. Defendant and Debra took Spicer's body and threw it over a cliff into the Clackamas River.

Defendant testified, admitting that he assisted Debra in disposing of Spicer's body, but denying that he had anything to do with the murder. His testimony was that, when the three arrived at the residence, Debra initiated an act of oral sex with him in the presence of Spicer. Defendant ejaculated. Debra and Spicer began engaging in sexual activities in the bedroom. Defendant went into another room, lay down on the bed and passed out. He testified that he was suddenly awakened by a noise, went back into the bedroom and saw Debra on top of Spicer. When Debra got off, defendant testified that he saw that Spicer had been stabbed, and Debra told him that Spicer was dead.

Spicer died as a result of stab wounds to the chest and abdomen and asphyxiation by manual strangulation. Her face was badly bruised and both eyes were blackened. She was naked and her body had bruises consistent with her having been held down. There were no defensive wounds. Two sperm heads were identified in material recovered from Spicer's mouth. The state's theory was that defendant and Debra took Spicer to their house where defendant had oral sex with Spicer. Thereafter, defendant and Debra stabbed and choked Spicer to death.

Defendant's first assignment of error is that the trial court erred in denying his demurrer to the indictments and in denying his motion for judgments of acquittal on the ground that the indictments failed to inform him of the nature of the crimes with which he was charged. He argues that, although the indictments allege the elements of homicide, they fail to allege the specific elements of the underlying crimes of sodomy in the first degree and sexual abuse in the first degree that elevate the homicide to aggravated murder.

Defendant was first indicted jointly with Debra in 1989. In 1990, he was individually indicted in a second five-count indictment. He went to trial on two counts in the 1989 indictment, as well as the five counts alleged in the 1990 indictment. ³ He demurred to the 1989 indictment, but did not demur to the 1990 indictment. His first attempt to challenge the sufficiency of the charges alleged in the 1990 indictment was by the motions for judgment of acquittal after the state's case-in-chief.

The proper time for an objection to the indictment is before trial. State v. Montez, 309 Or. 564, 597, 789 P.2d 1352 (1990). The state argues that defendant failed to preserve any objection to the charges in the 1990 indictment, because his demurrer was not made at arraignment. See State v. McKenzie, 307 Or. 554, 558, 771 P.2d 264 (1989). However, even assuming that defendant's objections to the 1989 indictment preserved a challenge to the charges in the 1990 indictment, the court did not err in denying the motions.

The Supreme Court recently rejected a challenge to an indictment for aggravated murder on the ground that it was indefinite and uncertain because it did not specify the state's theory or the elements of sexual abuse. State v. Rogers, 313 Or. 356, 380, 836 P.2d 1308 (1992), cert. den. 507 U.S. 974, 113 S.Ct. 1420, 122 L.Ed.2d 789 (1993). An aggravated murder indictment does not necessarily need to allege all of the elements of the underlying crimes nor the manner in which those crimes were committed. State v. Montez, supra, 309 Or. at 597, 789 P.2d 1352. An indictment in the language of the statute generally is sufficient. State v. Nussbaum, 261 Or. 87, 91, 491 P.2d 1013 (1972). The counts here were phrased in the statutory language and sufficiently apprised defendant of the charges against him to enable him to make his defense. State v. Cohen, 289 Or. 525, 529, 614 P.2d 1156 (1980).

Defendant next argues that the court erred in denying four of his motions for judgments of acquittal on the ground that there was insufficient evidence from which the jury could find him guilty. He contends that the evidence did not show that he was personally involved in causing Spicer's death, that there was no evidence that any sexual act occurred with forcible compulsion or without Spicer's consent and that there was insufficient evidence to indicate that any sexual crime--as opposed to sexual act--had occurred at all.

The only evidence supporting defendant's version of the events was his testimony. The jury was not bound to accept his version of the facts. See State v. Rose, 311 Or. 274, 284, 810 P.2d 839 (1991). The state presented evidence that defendant, a violent, intoxicated man, took Spicer to his house, had sex with her, that she was attacked and that she died as a result of stabbing and strangulation. It presented evidence that defendant disposed of Spicer's body, concealed evidence of the crime and fled the state. Viewing the evidence in the light most favorable to the state, there was sufficient evidence from which the jury could conclude, beyond a reasonable doubt, that defendant subjected Spicer to sexual contact or deviate sexual intercourse through forcible compulsion and that he personally murdered her.

Defendant next argues that the court erred in allowing the state to call one of his expert witnesses to provide testimony on behalf of the state when the testimony exceeded the scope of the expert's testimony on defendant's direct examination. During the state's case-in-chief, state criminalist Scarpone testified that, using the "Christmas tree stain" method on material taken from Spicer's mouth, she had identified two sperm heads. During defendant's case, one of his experts, Dr. Brady, testified that, in his opinion, the objects found in the victim's mouth were not sperm heads. Another expert, Dr. Grimsbo, also testified during defendant's case. His testimony was limited to whether material on scissors found in defendant's van was blood.

Before Grimsbo testified, the prosecutor had contacted him to discuss the question of the blood on the scissors. During their discussion, the prosecutor also asked Grimsbo some questions regarding the stain method used to detect the presence of sperm in Spicer's mouth. Grimsbo later contacted the prosecutor to see if he could examine the slides, and the prosecutor complied. On cross-examination, the prosecutor asked the court for permission to examine Grimsbo on a matter beyond the scope of his direct examination, that is, his expertise in the use of biological stains. The court sustained defendant's objection to the state putting on rebuttal at that time. Grimsbo was excused, "subject to recall."

After Grimsbo's testimony, the prosecutor stated that, in order to rebut Brady's testimony, he wanted to call Grimsbo to testify that he had looked at the slides. The court then examined Grimsbo out of the presence of the jury. Grimsbo testified that he had discussed the issue of longevity of sperm with the defense team and later had received a phone call from defense counsel stating that the defense would question him only about the blood on the scissors. He told the court that, pursuant to the trial court's order, defense counsel also informed him that the defense could not tell him not to talk to the prosecution. Grimsbo also told the court that his discussions with the prosecutors did not relate to the testimony he gave for the defense and that he was not asked about conversations with the defense. In an offer of proof, the state then elicited testimony from Grimsbo that the Christmas tree stain method was accurate and that, in his opinion, sperm heads were correctly identified in the material recovered from Spicer's mouth. The court asked him whether he had ever discussed the matter of the stain method and the identification of the sperm heads with the defense. Grimsbo stated that he had not. Defense counsel then moved to exclude Grimsbo from testifying in the state's rebuttal case on the ground that his testimony was "work product."

An in camera proceeding followed. There, defense counsel testified that Grimsbo had told the defense team that, "if he were asked, he would express an opinion that those two objects in the slide were in fact sperm heads * * *." However, defense counsel's testimony did not contradict Grimsbo's claim that he had not discussed the accuracy of the Christmas tree stain method with the defense team. The prosecutor...