State v. Douglas

• Citation: 800 P.2d 288,310 Or. 438
• Parties: STATE of Oregon, Respondent, v. Ricky Leon DOUGLAS, Appellant. CC J88-0944; SC S36035.
• Decision Date: 25 October 1990
• Court: Supreme Court of Oregon

Page 288

800 P.2d 288

310 Or. 438

STATE of Oregon, Respondent, v. Ricky Leon DOUGLAS, Appellant.

CC J88-0944; SC S36035.

Supreme Court of Oregon In Banc.

Argued and Submitted July 9, 1990.

Decided Oct. 25, 1990.

[310 Or. 439-A] Diane L. Alessi, Deputy Public Defender, Salem, argued the cause for appellant. On the brief were Sally L. Avera, Acting Public Defender, and John P. Daugirda, Deputy Public Defender, Salem.

Brenda J Peterson, Asst. Atty. Gen., Salem, argued the cause for respondent. With her on the brief were Dave Frohnmayer, Atty. Gen., and Virginia L. Linder, Sol. Gen., Salem.

GRABER, Judge.

A jury convicted defendant of aggravated murder by solicitation, ORS 163.095(1)(b), ¹ and he received a sentence of death. The case is before us on automatic and direct review. ORS 163.150(1)(f) (1987). We affirm the conviction of aggravated murder, vacate the sentence of death, and remand the case for a new penalty phase proceeding.

We state the facts in the light most favorable to the state. State v. Brown, 310 Or. 347, 350, 800 P.2d 259 (1990). In March 1987, Rene Wright separated from her boyfriend, Chuck Pease, and moved in with defendant. On March 18, Wright and defendant drove to Reno and were married. Shortly thereafter, Wright left defendant and returned to Pease.

Defendant was angry that Wright had left him. He threatened her and demanded that she return to him. He then focused his anger on Pease. Defendant, a methamphetamine dealer, told friends that he thought that Pease was a drug enforcement agent, who had blackmailed Wright into leaving him. He also told friends that he was going to have Pease killed. Al Henderson testified that defendant had hired him to kill Pease for $5,000, but that Henderson had abandoned the contract.

In July 1987, an acquaintance of defendant's, Zane Justesen, arranged a meeting between defendant and Dave Marr to discuss a contract to kill Pease. Ladd Justesen, Zane's brother and a friend of Marr, testified that Marr offered him $4,000 to help find Pease.

On September 16, 1987, Marr and Ladd Justesen drove to Pease's home in Myrtle Creek. Pease was not there, so they drove to a nearby grocery store. By unfortunate coincidence, Pease and Wright were at the store. Justesen told Pease that Justesen's pickup had broken down. He offered Pease $10 to give him a ride to the pickup. Pease agreed, but said that he first had to take Wright home. While Pease drove Wright home, Marr drove the pickup to a quiet spot on Highway 42.

Pease returned to the grocery store and drove Justesen to the pickup. Marr approached and asked Pease if he would help retrieve some bags of marijuana from the bushes at the side of the road. Pease agreed. As the men walked down the embankment, Marr moved behind Pease, reached around him, and cut his throat. A police officer discovered Pease's body the next day.

Defendant made a series of admissions during the following months. For example, he told his uncle that he had paid Marr $10,000 to kill Pease.

On appeal, defendant raises eight assignments of error, the first two of which relate to the guilt phase of the trial. In his first assignment of error, defendant challenges the trial court's denial of his motion to excuse juror Oswald for cause. He points to several statements that Oswald made during voir dire, which, he asserts, demonstrated that she could not be fair to him.

Defendant used a peremptory challenge to remove Oswald from the panel. Although he exhausted his peremptory challenges, he did not object to any of the jurors who ultimately heard the case. In that circumstance, we need not decide whether the challenge for cause should have been allowed. This court held, in State v. Megorden, 49 Or. 259, 263-64, 88 P. 306 (1907), that:

"The erroneous overruling of a good challenge for cause, thereby compelling the use of a peremptory challenge, is not prejudicial error where it does not appear that the challenger was compelled to accept an objectionable juror."

State v. Rathie, 101 Or. 339, 348-49, 199 P. 169, 200 P. 790 (1921), reached the same result, although this court characterized the defendant's failure to object to any of the remaining jurors as a "waiver." We think that State v. Megorden, supra, more accurately described the reason for the rule, which is a lack of demonstrated prejudice:

" 'The simple question, after the peremptory challenges are exhausted is: "Is the jury which finally tries the case impartial?" If so, we cannot imagine that the accused has any just ground of complaint with regard to it. All that the constitution, all that the law, requires and demands is a trial "by an impartial jury." If he makes no complaint or has no complaint to make of it as finally organized, the presumption is legitimate that it is impartial.' " 49 Or. at 264, 88 P. 306 (quoting Loggins v. The State, 12 Tex.App. 65, 85 (1882)).

In State v. Farrar, 309 Or. 132, 786 P.2d 161 (1990), this court held that the defendant, who had challenged the trial court's denial of his motion to dismiss a juror for cause, was not entitled to relief. Although the court noted that the defendant in Farrar had unused peremptory challenges remaining, its other reasoning applies here with equal force:

"Defendant acknowledges that he removed the juror thereafter from the jury panel through his use of a peremptory challenge. Consequently, the juror did not actually sit on the jury that was empaneled for trial. * * * Defendant did not and does not argue that any member of the jury panel that actually decided his guilt should have been excused for cause. Moreover, he did not [and] does not * * * contend that his use of a peremptory challenge to excuse the juror forced him to accept a jury that he otherwise would not have accepted. Defendant fails to identify any prejudice that may have resulted from the ruling even if it were error." 309 Or. at 158, 786 P.2d 161.

Defendant has not even argued, let alone demonstrated, that the final jury panel was inappropriate in any way. He has, therefore, failed to show that the trial court's decision to deny the motion to dismiss juror Oswald for cause was reversible error.

In his second assignment of error, defendant argues that the trial court improperly admitted, under OEC 804(3)(a), ² former testimony given by Carol and Bob Cooper. The Coopers had testified against defendant at his security release hearing. When the time for trial arrived, however, Bob Cooper, who was facing prosecution on racketeering charges, invoked his constitutional privilege against self-incrimination. Carol Cooper also invoked the privilege, but only as to questions about controlled substances.

The trial court ruled that the Coopers were "unavailable" within the meaning of OEC 804(1)(a) ³ and that defendant had had "an opportunity and similar motive to develop [their] testimony," as required by OEC 804(3)(a), at the security release hearing. "The court determines under Rule 104(1) whether the requirements of unavailability have been satisfied." Kirkpatrick, Oregon Evidence 618, § 804 (2d ed. 1989).

"[OEC 104(1) ] assigns to the trial judge the responsibility for making certain preliminary determinations regarding * * * admissibility. * * * Is a witness whose former testimony is offered unavailable? * * *

"To the extent that these preliminary inquiries are factual, the judge will necessarily receive evidence and act as a trier of fact. * * * Preliminary questions may also call for an evaluation of evidence in terms of a legal standard. * * * The judge is to make these decisions as well." Id. at 28.

We are bound by the trial court's findings of historical fact, but not by its legal conclusions. See State v. Herbert, 302 Or. 237, 241, 729 P.2d 547 (1986) (rule applied to determination of probable cause). We consider defendant's arguments with those standards in mind.

Defendant first challenges the trial court's holding that Carol Cooper was "unavailable." Although he concedes that Bob Cooper's invocation of his privilege as to all questions made him unavailable, defendant contends that Carol Cooper's "partial" invocation of her privilege did not make her similarly unavailable. On this record, the trial court properly disagreed.

Carol Cooper declined to answer any questions about drugs. Defendant's counsel himself pointed out that he would be unable to cross-examine her effectively without asking her questions about drug use:

"DEFENSE COUNSEL: [Carol Cooper has] made numerous statements about the whole gamut of affairs between [sic ] her, her husband and [defendant]. Adequate cross-examination of her would be extraordinarily different if for instance we couldn't talk about the fact that her husband is a meth cook and she knew about it and was aware of his association with various other witnesses.

" * * * * *

" * * * They [Carol Cooper and another witness] were both [methamphetamine] users or have been in the past. The circumstances under which they observe what they are here to report if they decide to testify would be a subject of cross-examination very properly * * *."

Moreover, the whole fabric of Carol Cooper's testimony was threaded with references to drugs. Her story would have lacked coherence if all references to drugs had been excised. Because she could not testify meaningfully without mentioning drugs, the trial court did not err in concluding that she was unavailable within the meaning of OEC 804(1)(a).

Defendant next asserts that the Coopers' testimony did not meet the requirements of OEC 804(3)(a) that there have been an "opportunity and similar motive to develop the testimony" in the former hearing. He is wrong. The security release hearing did meet those requirements.

First, defendant had the opportunity at the security release hearing to cross-examine the Coopers. Indeed, he availed himself of it fully. He was present and represented by counsel at the hearing. His counsel cross-examined both witnesses to try to...