State v. Charboneau
| Decision Date | 30 April 1996 |
| Citation | 323 Or. 38,913 P.2d 308 |
| Parties | STATE of Oregon, Respondent, v. Grant Steven CHARBONEAU, Appellant. CC C9208-34751; SC S41060. |
| Court | Oregon Supreme Court |
[323 Or. 39-A] On automatic and direct review of the judgment of conviction and sentence of death imposed by the Circuit Court of Multnomah County; Joseph Ceniceros, Judge.
David E. Groom, Deputy Public Defender, Salem, argued the cause for appellant. With him on the briefs was Sally L. Avera, Public Defender.
Robert B. Rocklin, Assistant Attorney General, Salem, argued the cause for respondent. With him on the brief were Theodore R. Kulongoski, Attorney General, and Virginia L. Linder, Solicitor General.
A jury convicted defendant of one count of aggravated murder, six counts of murder, one count of felony murder, two counts of kidnapping in the first degree, one count of kidnapping in the second degree, one count of assault in the third degree, and one count of abuse of a corpse in the second degree. All the crimes related to a single victim.
After the jury answered in the affirmative the penalty phase questions submitted to it in accordance with ORS 163.150(1)(b), 1 the trial court merged the aggravated murder count with the murder counts and sentenced defendant to death as provided in ORS 163.150(1)(f). 2 The court sentenced defendant to separate terms of imprisonment on each of the other counts and ordered that those sentences run consecutively.
This case comes to us on automatic and direct review under ORS 163.150(1)(g). Defendant seeks reversal of his convictions or, in the alternative, asks us to vacate the death sentence. For the following reasons, we reverse his convictions pertaining to the murder counts and affirm as to the remaining counts.
We view the evidence adduced at trial in the light most favorable to the state, because the jury found defendant guilty. See State v. Tucker, 315 Or. 321, 325, 845 P.2d 904 (1993) ( principle). The victim, Misty Largo, was a homeless teenager who had been living in Portland for 6 to 12 months at the time of her death. On July 25, 1992, defendant, along with Greg Wilson and two other men, drove to an area under the Marquam Bridge where Largo then was living. Defendant and Wilson were concerned that Largo was spreading rumors about Wilson's having stabbed someone.
The group found Largo and escorted her back to their vehicle at knife-point. They drove to defendant's house. Defendant took Largo into the house, also at knife-point. Many people were there. Largo was taken into a back room. Wilson instructed several of the people present to hit Largo in the face, and they did. Largo was kept in the back room, where she was repeatedly interrogated and slapped.
The next day, defendant and Wilson left the house and told others in the house to make sure that Largo did not leave. When defendant and Wilson returned later that day, Largo was interrogated and slapped for several hours. Then she was taken again to the back room. At some point that evening, Wilson, in defendant's presence, decided that he would kill Largo.
Largo was tied to a wheelchair. Wilson and defendant first tried to kill Largo by poisoning her with a glass of water in which they had dissolved a nitroglycerin pill. When that act failed to kill Largo, defendant found a plastic bag and placed it over Largo's head. After about five minutes, Largo was still breathing. Defendant then located a piece of speaker wire and wrapped it around Largo's neck. Defendant and Wilson took turns choking Largo with the speaker wire for five to ten minutes. Still not convinced that Largo was dead, Wilson hit Largo on the sternum and throat. She "gurgled and choked and stopped breathing."
After Largo died, defendant said that he would dispose of her body. Defendant and Michael Leon Stanton, another man at defendant's house, left with the body. Defendant later said that he had hit Largo twice in the head with a splitting maul and that he and Stanton had stabbed her in the heart.
Defendant assigns as error the admission of portions of a plea agreement between a state's witness, Marvin Al Tai-Juan Smith, and the state.
During the guilt phase of the trial, Smith testified in the state's case-in-chief. On direct examination, Smith testified that he was one of the people who found Largo under the Marquam Bridge on July 25, 1992, and forced her back to defendant's house. Smith was one of the two people responsible for making sure that Largo did not leave the house the next day. Smith saw Largo being beaten and interrogated. He watched defendant and Wilson kill Largo; he held her legs down while defendant and Wilson strangled her. When defendant and Wilson went to dispose of Largo's body, Smith remained at the house to clean it up in an effort to remove traces of the crime. Smith also testified that he was arrested for his participation in the murder of Largo and that he had entered a plea agreement with the state in exchange for his testimony at defendant's trial.
Defense counsel cross-examined Smith about the plea agreement to demonstrate Smith's motive to testify favorably for the state. Smith testified that, originally, he was charged with three counts of aggravated murder, three counts of felony murder, two counts of kidnapping in the first degree, and one count of kidnapping in the second degree. In exchange for his testimony at defendant's trial, Smith testified, he pleaded guilty to one count of felony murder for which the state would recommend a sentence of no more than 121 months in prison.
On redirect examination, the state offered Smith's plea agreement as evidence. The state's purpose was to rehabilitate Smith by showing that he had a motive to testify truthfully; the plea agreement provided that, if he did not, the agreement would be "null and void."
Defendant objected to the admission of the following emphasized portions of that plea agreement ():
The trial court overruled defendant's objections to the foregoing paragraphs, on the ground that the plea agreement was relevant and that any unfair prejudice was outweighed by probative value. The trial court observed:
The trial court redacted the words "honestly" and "truthfully," in a paragraph stating that Smith "agrees to testify fully, honestly, truthfully, and completely" at defendant's trial, and then admitted the agreement. Defendant assigns error to the overruling of his objections.
The trial court was correct when it observed that the old rule concerning a party's vouching for the credibility of its witnesses has been rejected. See State v. Eby, 296 Or. 63, 71 n. 4, 673 P.2d 522 (1983) (). The "voucher rule" was the name given to "a doctrine which had been used to justify restrictions against impeaching one's own witness." Ibid. In Eby, the court held that "[a]ny remaining remnants of [the "voucher rule"] died with the adoption of OEC 607, which provides: 'The credibility of a witness may be attacked by any party, including the party calling the witness.' " Ibid.
That rule, however, is not the theory that defendant raised in his objections to the trial court. In this case, defendant objected to the state's attempts to bolster Smith's credibility by offering the challenged portions of the plea agreement. This court confronted a somewhat similar situation in Eby and concluded that such evidence was inadmissible.
In Eby, the defendant was convicted of felony murder and first degree robbery. At the defendant's trial, a witness, McVae, testified that the defendant had proposed a plan to her to rob the victim. McVae also testified as to the details of the robbery and the murder. 296 Or. at 65-66, 673 P.2d 522. After that testimony, the following exchange occurred:
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