State v. Farrar

• Decision Date: 11 January 1990
• Docket Number: SC,C-20505
• Citation: 786 P.2d 161,309 Or. 132
• Parties: STATE of Oregon, Respondent, v. Stephen Lewis FARRAR, Appellant. CC 86-S33949.
• Court: Oregon Supreme Court

Page 161

786 P.2d 161

309 Or. 132

STATE of Oregon, Respondent, v. Stephen Lewis FARRAR, Appellant.

CC 86-C-20505, SC S33949.

Supreme Court of Oregon In Banc.

Argued and Submitted Feb. 1, 1989.

Decided Jan. 11, 1990.

Stephen J. Williams, Deputy Public Defender, Salem, argued the cause, for appellant. With him on the brief were Gary D. Babcock, Public Defender, and John P. Daugirda, Deputy Public Defender, Salem. Appellant filed a supplemental brief pro se.

Brenda J. Peterson, Asst. Atty. Gen., Salem, argued the cause, for respondent. With her on the briefs were Dave Frohnmayer, Atty. Gen., Virginia L. Linder, Sol. Gen., Rives Kistler, Timothy A. Sylwester and Douglas F. Zier, Asst. Attys. Gen., Salem, and Teresa Ozias, Certified Law Student, Salem on the supplemental brief.

JONES, Justice.

Defendant appeals his conviction of aggravated murder and sentence of death. The review of this case will address all of defendant's 19 assignments of error raised in defendant's voluminous brief and addenda.

ASSIGNMENT OF ERROR NO. 1

Pretrial proceedings; selective prosecution

The first question posed by defendant to this court is:

"Did the district attorney engage in an unfair selective prosecution in his decision to prosecute defendant for aggravated murder and in his refusal to engage in plea negotiations?"

In support of an affirmative answer to this question, defendant argues:

"The district attorney denied defendant equal treatment and engage in unfair selective prosecution by his standardless, ad hoc election to prosecute defendant for aggravated murder and by his refusal to engage in plea negotiations.

"Defendant was one of three persons charged with aggravated murder out of a pool of 15 to 18 alleged murderers. * * * Concerning defendant, the district attorney summarily represented that defendant had a history of criminal activity and the state could produce evidence on the guilt and sentencing issues. On this record, the state failed to prove equal and fair treatment in the charging decision.

"The denial of plea negotiations established an unfair selective prosecution in this case. The district attorney entered into plea negotiations in every case alleging murder or aggravated murder except the present case. Although his office had 'unwritten guidelines' which could be applied in weekly staff discussions, the district attorney did not articulate the contents of the guidelines or indicate that they were specifically applied in Farrar's case or in other cases. The prosecutor merely explained the two ad hoc plea negotiations with Williamson and Moen. This record did not establish the existence of a coherent systematic policy and equal application thereunder. The refusal to negotiate with Farrar constituted unequal treatment under Article I, section 20 and the Fourteenth Amendment."

The facts relevant to this first question were developed during a January 5, 1987, pretrial hearing. At that hearing, District Attorney Penn testified concerning (1) the bases for the charging decisions and dispositions in Marion County's various homicide prosecutions arising after enactment of the present death penalty law and (2) his office's 1980 policy manual and additional unwritten guidelines.

Dale Penn testified he had been a deputy district attorney for eight years and district attorney for two years commencing January 1985. At the time of this hearing, Oregon's present death penalty statute had been in effect for 18 months. During this 18-month period, 25 to 30 homicides had occurred in Marion County. Charges had been brought on 15 to 18 of these killings. ¹ The district attorney sought three aggravated murder indictments. He explained:

"These are the only three cases that upon investigation, we were able to develop evidence on all of the elements of the crime, plus the sentencing factors for the death penalty, and the only cases in which we were able to present that evidence to the Grand Jury and the Grand Jury would agree that there was sufficient evidence to proceed."

Defendant, Moen and Williamson were the three individuals charged with aggravated murders.

The district attorney and Williamson entered into plea negotiations, and Williamson pled guilty to two counts of murder. Penn described the case:

"[T]hat case was the very first case that we had dealt with in Marion County under the death penalty.

"Looking back upon it, I would not have submitted that to the Grand Jury requesting the death penalty to begin with because there was insufficient evidence on the three sentencing factors to justify death sentence. And that was the primary reason for us entering into negotiations with defense counsel and offering something other than death sentence; because of that particular defendant's young age, 20 years old, lack of prior record, some very severe mitigating circumstances, or at least circumstances which the victims engaged in which may have justified some retaliation by the defendant.

"Those factors that went directly to the three sentencing factors. And I don't believe we had sufficient evidence to really justify seeking the death sentence in that case."

The district attorney and Moen entered into plea negotiations, the prosecutor offered a negotiated settlement, but Moen refused the offer. Penn explained:

"We were approached by Mr. Moen's counsel on whether or not we would entertain anything other than a guilty plea and submission of the death penalty.

"And after analyzing the case and the evidence that we had available to us, and then, again, the factors that I've detailed in my affidavit, we made the offer of a guilty plea to aggravated murder without imposition of the death penalty. That has not been accepted; and to my knowledge, there's no likelihood it will be accepted."

In the present case, Farrar was age 29 on the date of his arrest. Farrar's attorney approached the district attorney regarding the possibility of plea negotiations. Penn explained his response:

"Given again the factors that I put in the affidavit, and particularly the admissible evidence that we have in this particular case on all the elements, including the three sentencing elements, it's my opinion we have sufficient evidence to convict the defendant and also to seek the death penalty.

"And given the nature of the crime and given the nature and background of this defendant and the likelihood he's going to continue to present a substantial danger to the public for many years into the future, we have stated that our position is that he must plead guilty to aggravated murder with the death penalty."

The district attorney explained his unwillingness to engage in plea negotiations in the present case, as follows:

"Q. [DEFENSE COUNSEL]: And, in fact, just as you've said, this is your first case of murder of the approximately 17 or 18 individuals where, in fact, plea negotiations are not going to be entertained?

"A. [PROSECUTOR]: Well, plea negotiations from the viewpoint that something other than the charged offense should be involved. Now, there are many times when we negotiate with people and our negotiation is, plead to the charge; or our negotiation will be, plea to the charge and we'll recommend maximum sentence, which is basically what our negotiation is in Mr. Farrar's case. It's just that the death penalty isn't involved in those other cases.

"Q. And, in fact, in several of those cases, not to get specific, there may be other charges that are not brought, there may be other considerations as well than the mere charge?

"A. Certainly. That's true. There are also some cases where we say there are no other charges out there. But this person must plead to this charge and we'd be free to make a recommendation.

"Now, admittedly, that is the hard-line approach. And there are so many factors involved, that it doesn't come down to a lot of cases where that ends of being the result. But Mr. Farrar's case is one of them."

With this uncontested background, defendant sets forth two subsets of error under his first claim:

"(A) The Charging Decision

" * * * [T]he first issue is whether the district attorney denied defendant equal treatment by the standardless election to commence a prosecution for aggravated murder."

and

"(B) Denial of Plea Negotiations

" * * * [T]he second issue is whether the district attorney's refusal to engage in plea negotiations with defendant constituted 'unequal treatment' and unfair selective prosecution. The state failed to meet its burden of showing a systematic policy."

1. Answer to (A)

Defendant's claim that "the district attorney denied [him] equal treatment by the standardless election to commence a prosecution for aggravated murder" is without merit.

Defendant does not dispute that the state had a sufficient factual basis for charging him with aggravated murder. The district attorney's decision to seek an aggravated murder indictment against him was proper on its face. Placing defendant within the class of persons charged with aggravated murder was consistent with a proper application of a neutral, objective and appropriate standard: probable cause to believe that defendant committed the crime. The record shows that that was the district attorney's motive here.

Defendant does not contend, and no evidence in the record suggests, that the district attorney's decision to seek an aggravated murder indictment was prompted by improper motives, or indeed by any reason other than that the district attorney had sufficient evidence to prove beyond a reasonable doubt that defendant committed aggravated murder. The district attorney's decision to seek an aggravated murder indictment against defendant did not treat him differently from any other similarly situated person. Nothing in this record suggests that the district attorney ever has failed or refused to seek an aggravated murder indictment when he had probable cause to believe that specific persons committed aggravated murder in Marion...