State v. Bowen

• Jurisdiction: Oregon
• Citation: State v. Bowen, 352 Or. 109, 282 P.3d 807 (Or. 2012)
• Docket Number: (CC 02CR0019,SC S058431).
• Parties: STATE of Oregon, Respondent, v. Gregory Allen BOWEN, Appellant.
• Court: Oregon Supreme Court
• Decision Date: 28 June 2012

352 Or. 109

282 P.3d 807

STATE of Oregon, Respondent,

v.Gregory Allen BOWEN, Appellant.

(CC 02CR0019; SC S058431).

Supreme Court of Oregon, En Banc.

Argued and Submitted March 9, 2012.

Decided June 28, 2012.

On automatic and direct review of judgment of conviction and sentence of death imposed by the Curry County Circuit Court following remand from this court.^*

Robin A. Jones, Senior Deputy Public Defender, Office of Public Defense Services, Salem, argued the cause for appellant. With her on the briefs was Peter Gartlan, Chief Defender.

Timothy A. Sylwester, Assistant Attorney General, Salem, argued the cause for respondent. With him on the brief were John R. Kroger, Attorney General, and Mary H. Williams, Solicitor General.

DE MUNIZ, J.

This capital case is before this court, for a second time, on automatic and direct review of a judgment of conviction and sentence of death. In 2006, in the initial proceeding under ORS 138.012(1), this court affirmed defendant's convictions for aggravated murder and the imposition of the death penalty, but concluded that the trial court had erred in failing to merge two aggravated murder verdicts and one intentional murder verdict against defendant into a single conviction set out in a single judgment that imposed one sentence of death. State v. Bowen, 340 Or. 487, 527, 529, 135 P.3d 272 (2006)( Bowen I ). On remand, the trial court denied several defense motions—which are now at issue in this proceeding—and entered a corrected judgment. We affirm the trial court's denial of defendant's motions and also affirm defendant's merged conviction and the sentence of death. However, we reverse the corrected judgment and remand for entry of a new corrected judgment, for reasons explained in this opinion.

I. FACTS AND PROCEDURAL BACKGROUND

The facts surrounding the crimes that gave rise to defendant's convictions are described in Bowen I, 340 Or. at 489–92, 525–27, 135 P.3d 272, and we need not repeat them in detail here. By way of summary, defendant was indicted in January 2002 for multiple crimes that occurred in December 2001, involving two different victims. The first group of allegations involved victim Christiansen, including two aggravated murder charges (death caused during robbery and death caused during burglary), as well as an intentional murder charge, together with additional crimes that occurred in Christiansen's home. The second group of allegations involved crimes against victim Dalton on the same day but in a different location. Defendant pleaded guilty to the Dalton allegations and not guilty to the Christiansen allegations. In April 2003, a jury convicted defendant of all the Christiansen allegations, and, at the conclusion of sentencing, the jury answered “yes” to each of the four statutory questions under ORS 163.150(1)(b), as to both counts of aggravated murder. The trial court thereafter imposed a sentence of death on the Christiansen aggravated murder counts, with a separate judgment and sentence for each count. Id. at 525, 135 P.3d 272. On the Christiansen intentional murder charge, the court entered another separate judgment that imposed a 300–month sentence with lifetime post-prison supervision and also imposed sentences on all remaining counts as to both victims. Id. at 527, 135 P.3d 272.

On automatic review, this court rejected defendant's assignments of error relating to various pretrial and guilt-phase issues, and substantive challenges to the penalty phase. Id. at 492–525, 135 P.3d 272. However, the court concluded that the trial court had erred under ORS 161.067(1) in failing to merge the aggravated murder verdicts into a single conviction and also in failing to merge the intentional murder verdict with the aggravated murder verdicts, which should have been set out in a single judgment imposing one sentence of death, and that those errors were apparent on the face of the record.¹Id. at 527, 529, 135 P.3d 272. The court therefore remanded for entry of a corrected judgment. Id. The specific remand direction that this court provided to the trial court is at issue in this proceeding and is discussed in greater detail later in this opinion.

On remand, at a hearing in March 2010, the trial court denied three defense motions: (1) “motion to follow ORS 138.012,” asserting that the trial court on remand either must sentence defendant to life in prison with the possibility of parole or commence a new sentencing proceeding before a jury; (2) motion for new trial, based on the trial court's decision to require defendant to wear a stun device during the initial trial; and (3) motion to dismiss, for lack of “speedy sentencing,” based on the amount of time that had elapsed between the issuance of the appellate judgment in Bowen I and the scheduling of resentencing proceedings. The court then entered a new judgment that merged the aggravated murder and murder convictions and imposed a sentence of death, but made no other changes to the earlier form of judgment.

On review, defendant assigns error to the trial court's denial of each motion summarized above and contends that the error in each instance requires reversal of the corrected judgment of conviction and the sentence of death. We address each of defendant's assignments of error below.

II. DISCUSSION

A. Motion for Resentencing on Remand Under ORS 138.012(2)(a)

1. Scope of Remand

We begin by setting out the statute that forms the basis for defendant's assignment of error. ORS 138.012 provides, in part:

“(1) The judgment of conviction and sentence of death entered under ORS 163.150(1)(f) is subject to automatic and direct review by the Supreme Court. * * * “(2) Notwithstanding ORS 163.150(1)(a), after automatic and direct review of a conviction and sentence of death the following apply:

“(a) If a reviewing court finds prejudicial error in the sentencing proceeding only, the court may set aside the sentence of death and remand the case to the trial court. No error in the sentencing proceeding results in reversal of the defendant's conviction for aggravated murder. Upon remand and at the election of the state, the trial court shall either:

“(A) Sentence the defendant to imprisonment for life in the custody of the Department of Corrections as provided in ORS 163.105(1)(c); or

“(B) Impanel a new sentencing jury for the purpose of conducting a new sentencing proceeding to determine if the defendant should be sentenced to:

“(i) Death;

“(ii) Imprisonment for life without the possibility of release or parole as provided in ORS 163.105(1)(b); or

“(iii) Imprisonment for life in the custody of the Department of Corrections as provided in ORS 163.105(1)(c).”

(Emphasis added.)

The crux of defendant's argument relies on the phrase, “[i]f a reviewing court finds prejudicial error in the sentencing proceeding only,” in ORS 138.012(2)(a). In defendant's view, the trial court's earlier error under ORS 161.067(1) in entering the separate judgments of conviction and sentences of death-as identified by this court in Bowen I—necessarily qualified as “prejudicial error” found in the original “sentencing proceeding” for purposes of ORS 138.012(2)(a). Consequently, defendant argues, the trial court was limited to the sentencing choices on remand set out in ORS 138.012(2)(a)(A) and (B), at the state's election, and was not permitted to simply enter a corrected judgment. In response, the state emphasizes that this court in Bowen I expressly rejected all defendant's claims of error that challenged the validity of his convictions and sentences of death, and it affirmed those convictions and sentences. As to the form of judgment only, the state continues, this court concluded that the trial court had erred in failing to merge the aggravated murder and intentional murder convictions and to enter a single judgment imposing a sentence of death, and the court limited its disposition to correction of that error.

The parties' dispute focuses on a purported ambiguity arising out of the wording in this court's opinion in Bowen I. In that opinion, after concluding that the judgments convicting defendant on two counts of aggravated murder and imposing sentences of death did not comply with ORS 161.067(1), and that that error amounted to error apparent on the face of the record, this court stated:

“[W]e reverse the judgments of conviction for aggravated murder on counts one and two, vacate the sentences of death imposed on those convictions, and remand to the trial court for entry of corrected judgments and resentencing.”

340 Or. at 527, 135 P.3d 272 (emphasis added). Similarly, after concluding that the trial court also had erred under ORS 161.067(1) with respect to the separate judgment that incorporated the intentional murder conviction, and that that error also was apparent on the face of the record, this court stated:

“[W]e reverse the judgment of conviction for intentional murder on count three, vacate the sentence imposed on that conviction, and remand to the trial court for entry of a corrected judgment and resentencing.”

Id. at 529, 135 P.3d 272 (emphasis added). At the conclusion of its opinion, the court summarized its disposition as follows:

“[W]e remand the case for entry of a corrected judgment of conviction, reflecting defendant's guilt on the charge of aggravated murder, based upon alternative aggravating factors, and intentional murder, and imposing one sentence of death. We otherwise affirm the judgments of conviction and the sentences of death.

“The judgments of conviction and sentences of death are affirmed. The case is remanded to the circuit court for further proceedings.”

Id. (emphasis added).

Defendant is correct that some of the wording in Bowen I may be ambiguous. For example, after concluding that the trial court erred in failing to merge the aggravated murder convictions, the court stated that the judgments were “reverse[d]” and remanded for entry of corrected judgments “and resentencing.” Id. at 527, 135 P.3d 272....