State v. Davis

• Decision Date: 31 December 2008
• Docket Number: SC S053071.,CC 020633788.
• Citation: 345 Or. 551,201 P.3d 185
• Parties: STATE of Oregon, Respondent, v. Michael Andre DAVIS, Appellant.
• Court: Oregon Supreme Court

201 P.3d 185

345 Or. 551

STATE of Oregon, Respondent, v. Michael Andre DAVIS, Appellant.

CC 020633788.

SC S053071.

Supreme Court of Oregon, En Banc.

Argued and Submitted November 6, 2007.

Decided December 31, 2008.

Robin A. Jones, Senior Deputy Public Defender, argued the cause for appellant. With her on the briefs were Ingrid Swenson, Executive Director, Peter Gartlan, Chief Defender, and Meredith Allen, Deputy Public Defender, Office of Public Defense Services, Salem.

David B. Thompson, Assistant Attorney General, argued the cause for respondent. With him on the brief were Hardy Myers, Attorney General, Mary H. Williams, Solicitor General, and David B. Thompson, Kaye McDonald, Timothy A. Sylwester, and Heather Vogelsong, Assistant Attorneys General, Salem.

LINDER, J.

On November 3, 1991, Gerald Phillips and Belinda Flannigan were found dead in Room 24 at the Ara'Bel Motel in Portland. Detectives investigated the case for several weeks after the murders, and again in 1996, but came up with no solid leads until 2002. Following its investigation of the case in 2002, the state charged Michael Andre Davis (defendant) and Edgar Lee Foreman with several counts of aggravated murder for the deaths of Phillips and Flannigan.¹ Before trial, defendant and Foreman unsuccessfully moved to dismiss the charges on the ground of preindictment delay. The cases were severed for trial, and the charges against Foreman were dismissed without prejudice. The case continued against defendant and, on October 28, 2005, a jury found him guilty of all counts. After a penalty-phase proceeding, the trial court sentenced defendant to death.

The case is now before this court on automatic and direct review of defendant's judgment of conviction and sentence of death. ORS 138.012(1). Defendant raises 14 assignments of error, which he organizes into four categories: (1) pretrial issues; (2) issues raised during trial; (3) constitutionality of Senate Bill (SB) 936 (1997); and (4) constitutionality of Oregon's death-penalty scheme. In our view, four of defendant's assignments of error merit discussion: (1) defendant's assertion that the trial court erred in denying defendant's motion to dismiss for preindictment delay; (2) defendant's assertion that the trial court erred in denying defense counsel's motions to withdraw; (3) defendant's assertion that the trial court erred in denying defendant's motion for a mistrial based on the prosecutor's reference in his opening statement to the testimony of a witness who failed to appear at trial; and (4) defendant's assertion that the trial court erred in refusing to admit evidence of the contents of a police report.² For the reasons set forth below, we reject defendant's claims of error and, therefore, affirm his convictions and sentence of death.

I. FACTS AND PROCEDURAL BACKGROUND

We view the evidence in the light most favorable to the state, because the jury found defendant guilty. See State v. Bowen, 340 Or. 487, 489, 135 P.3d 272 (2006), cert. den., 549 U.S. 1214, 127 S.Ct. 1258, 167 L.Ed.2d 89 (2007) (stating that standard). On Sunday, November 3, 1991, the manager of the Ara'Bel Motel noticed that the door to Room 24 was open. That room was registered to Belinda Flannigan. The manager looked inside and saw a bloodied man against the wall. The manager immediately called the police. Upon entering the room, the police found the bodies of Gerald Phillips and Belinda Flannigan.

Detective Hill served as the lead detective on the case, and Detectives Norman and Yamasaki joined her. Detectives and criminalists photographed and videotaped the scene extensively. Inside the room, investigators found four .45 caliber shell casings, all of which had been fired from the same pistol, and three spent bullets. (The fourth spent bullet was later found in Phillips's body.) Investigators also found several personal items and recently purchased food products, but they found no useful fingerprints in the room. Police also tested a gold Mercedes Benz parked in front of Room 24, which belonged to Phillips's wife, for fingerprints, but came up with nothing useful. Detective Hill interviewed the resident of Room 21, who reported that she had heard a loud noise that sounded like a gunshot sometime after 10:00 p.m. the night before, but could not pinpoint the exact time.

Based on the state of the bodies when the medical examiner's investigator arrived at the scene, the medical examiner placed the time of death between 8:20 p.m. and 10:20 p.m. on November 2, 1991. The medical examiner performed autopsies on both Phillips and Flannigan on November 4. Based on the partially digested food in Phillips's stomach, combined with information concerning the time that Phillips last had eaten, the medical examiner concluded that Phillips had died between 8:20 p.m. and 10:20 p.m. on November 2. The medical examiner was unable to use the undigested food in Flannigan's stomach to assess her time of death, because the medical examiner had no information about when she last had eaten.

According to the record of outgoing telephone calls from the Ara'Bel Motel, the occupants of Room 23 made two 9-1-1 calls in the early morning hours of November 3, 1991. The first had occurred at 2:55 a.m. and the second had occurred at 2:58 a.m. Olivia and Paul Gattermeir were registered to Room 23, and each of them had called 9-1-1 to report "pops" that sounded like gunfire coming from the room next door. Detective Hill obtained a tape recording of the 9-1-1 calls and later interviewed Olivia about her call. Hill memorialized the content of that interview in a written report on November 7, 1991. That report recounts that Olivia told Hill that she and Paul had come back from dinner between 8:00 p.m. and 10:00 p.m. on November 2 and that they had heard loud "pops" approximately 30 to 45 minutes after they returned from dinner, well before the first 9-1-1 call was placed. The recording of the 9-1-1 calls was missing at the time that defendant was indicted and never has been recovered.

Detective Hill interviewed defendant shortly after the murders and learned that he had met Flannigan sometime in October 1991 at the Five Spot Tavern (Five Spot), where she worked. At the time, defendant had been living with Foreman. Defendant and Flannigan began dating, and they eventually both moved into the apartment of Eddie Bynum, one of defendant's associates. According to defendant, six days before Flannigan's murder, Flannigan did not return to the apartment at the end of her shift.³ Defendant later learned that Flannigan had resumed her relationship with her ex-boyfriend, Phillips. Flannigan returned to Bynum's apartment three days later to retrieve her clothing. Defendant, who was at the apartment when Flannigan returned, told her that she could get her clothes when she repaid $500 that she owed him. They argued about the debt, and Flannigan left on foot without her clothing.

According to defendant's interview with Hill, on the morning following the argument, Flannigan had called defendant at Bynum's apartment and informed him that she needed her clothing. She arrived at the apartment early that afternoon in a Toyota that, according to defendant, she said Phillips had bought for her. Defendant said that they talked for a little while, that Flannigan retrieved some of her clothing, and that she then left for work. Later that night, defendant went to the Five Spot to speak with Flannigan again.

Defendant further told Hill that Flannigan had called him at about 4:00 a.m. on November 2, 1991, (the day of the murders) and that he and Flannigan had spoken for approximately three hours. Between noon and 1:00 p.m. that day, Flannigan went to see defendant at Bynum's apartment. They apparently drove to a park, but Flannigan's car broke down. Flannigan had to get to work that evening, so they called Bynum and asked him for a ride. Bynum picked them up and dropped Flannigan off at the Ara'Bel Motel.

Defendant told Hill that he and Bynum had planned that night to go to a friend's house to watch a local professional basketball game on television, but that he decided to go home instead. Bynum dropped him off at their apartment between 6:30 p.m. and 6:45 p.m. Defendant said that Bynum had called him at the apartment during halftime, between 8:00 p.m. and 8:30 p.m., to tell him that he wasn't missing anything because the cable TV connection had gone out. Defendant said that, between 10:00 p.m. and 10:30 p.m., he drove one of Bynum's cars to a Safeway store, bought beer and a pack of cigarettes, and returned to the apartment. When defendant returned, Bynum was there. A short time later, Foreman arrived at the apartment with a friend. Foreman, his friend, and defendant then went to the New York Diner, a nightclub. According to defendant, they remained there until closing, which was about 2:30 a.m. They then tried to eat at a Lyon's restaurant and then at a Denny's restaurant, but the restaurants were too crowded. According to defendant, he returned to Bynum's apartment between 3:00 a.m. and 4:00 a.m. on November 3.

Bynum's statements to Hill were consistent with defendant's statements. He confirmed that he and defendant had dropped Flannigan off at the Ara'Bel Motel between 6:00 p.m. and 6:30 p.m. on November 2. Bynum also confirmed that he had telephoned defendant at the apartment during halftime of the basketball game, which was sometime between 8:00 p.m. and 8:30 p.m. Bynum further stated that, when he returned home between 10:15 p.m. and 10:30 p.m., defendant was not at the apartment and had taken one of Bynum's cars without permission. Bynum called Foreman to ask about defendant's whereabouts, but, as he did, defendant walked in carrying a 40-ounce bottle of beer.

Detective Hill interviewed Foreman on November 6, 1991. Foreman stated that, on November 2, 1991, he and two friends — Josh Lowery and Erik Payne — had planned to go to the basketball game at halftime and...