State v. Gibson

• Decision Date: 03 June 2005
• Citation: State v. Gibson, 338 Or. 560, 113 P.3d 423 (Or. 2005)
• Parties: STATE of Oregon, Respondent, v. Travis Lee GIBSON, Appellant.
• Court: Oregon Supreme Court

113 P.3d 423

338 Or. 560

STATE of Oregon, Respondent, v. Travis Lee GIBSON, Appellant.

CC 200005422; SC S48323.

Supreme Court of Oregon, En Banc.

Argued and Submitted September 9, 2004.

Decided June 3, 2005.

Eric Johansen, Deputy Public Defender, Salem, argued the cause and filed the briefs for appellant. With him on the briefs were Peter A. Ozanne, Executive Director, and Peter Gartlan, Chief Defender, Office of Public Defense Services.

Kathleen Mary Cegla, Assistant Attorney General, Salem, argued the cause and filed the brief for respondent. With her on the brief were Hardy Myers, Attorney General, Mary H. Williams, Solicitor General, and Laura Anderson and Janet Klapstein, Assistant Attorneys General.

BALMER, J.

This case is before us on automatic and direct review of defendant's judgment of conviction and sentences of death. Defendant seeks reversal of his convictions for two counts of aggravated murder and his convictions for felony murder, attempted murder, first-degree assault, first-degree robbery, first-degree burglary, and felon in possession of a firearm. Defendant challenges trial court rulings in the pretrial, guilt, and penalty phases of his trial, seeking reversal of his convictions or, in the alternative, vacation of his sentences and remand for resentencing. For the reasons set out below, we affirm the convictions and the sentences, except that we remand to the trial court for the limited purpose of merging defendant's two convictions for aggravated murder and resentencing defendant to only one sentence of death.

I. FACTS

Because the jury found defendant guilty, we review the evidence in the light most favorable to the state. State v. Thompson, 328 Or. 248, 250, 971 P.2d 879, cert. den., 527 U.S. 1042, 119 S.Ct. 2407, 144 L.Ed.2d 805 (1999).

Defendant attended a party at his cousin's house in Eugene at about 1:00 a.m. on March 12, 2000. There, defendant encountered Wendy Gates, James Herlong, and Deon Givens. Gates indicated that she knew a man named Joshua Copp who might have money because he sold marijuana. Defendant, Gates, Herlong, and Givens formulated a plan to rob Copp, and defendant agreed to drive them all to Copp's house. Defendant had a .45-caliber pistol with him, and Givens had two handguns, one of which he gave to Herlong.

When they arrived at Copp's house at about 5:00 a.m., defendant and Gates knocked on the door. Copp let them in because he knew Gates and then shut and locked the door. Thirty seconds later, defendant unlocked the door and flashed the porch light as a signal. Givens and Herlong then entered the house, and Gates went outside to the car. Givens, Herlong, and defendant confronted Copp in the hallway and told him to go back to his room, which he did. They then asked Copp where his gun and money were, and Copp told them that his gun was under the mattress. Defendant took Copp's gun and wallet, and someone taped Copp's hands and his eyes. Copp said that his roommate, Steve Johnson, was in the next bedroom. Herlong and Givens kicked in Johnson's door and asked him where his money was. They taped his hands and searched his room but failed to find anything. Johnson broke loose and tried to escape through the window, but defendant and Givens caught and pistol-whipped him.

After retaping Johnson, defendant, together with Givens and Herlong, took Johnson and Copp into the living room, laid them down on the floor, and kicked and hit them. Someone said, "Let's just smoke them." Defendant said, "Fuck it. Get a pillow. I'm going to shoot them both in the head." When Johnson broke loose again and ran to the door, defendant and Givens shot him five or six times at close range. Johnson fell through the front door of the house and onto the lawn. Givens and Herlong ran outside to the car. Another shot was fired inside the house, after which defendant emerged from the house and returned to the car. Defendant told the others in the car that he thought that he had shot one of the victims in the neck or the shoulder.

From Copp's house, defendant, Givens, and Herlong had taken some scales, a knife, some marijuana, a gun they found underneath Johnson's bed, and $200. Along with Gates, they went back to defendant's house, where they split up the money. When they got there, defendant told his wife, "we just killed two people." Later that day, they learned that only Copp had died. Defendant, Gates, and Herlong decided to go to Reno, and they left Eugene by bus the next morning. In Reno, defendant pawned the weapon that he had used during the robbery and shootings. He subsequently returned to Eugene, where he was arrested.

The state charged defendant with the crimes enumerated above, and a jury convicted defendant of all counts. At a separate penalty-phase proceeding on the two counts of aggravated murder, the jury affirmatively answered the four questions set out under ORS 163.150(1)(b). Pursuant to ORS 163.150(1)(f), the trial court entered a sentence of death on each of the aggravated murder counts.

Defendant raises 34 assignments of error. We have examined each of those assignments of error, and we discuss five of them below. We reject all but the assignment challenging the trial court's decision to enter two separate convictions for aggravated murder and two separate sentences of death.

II. EVIDENCE OF DEFENDANT'S "OTHER BAD ACTS"

In four assignments of error, defendant challenges the trial court's rulings that allowed evidence of what defendant describes as his "other bad acts." Those acts included defendant's earlier firing of the murder weapon when defendant and Herlong had considered robbing a sandwich shop and a conversation on the bus to Reno in which defendant suggested to Gates that she prostitute herself to make money for the group. We discuss in detail the context in which the trial court made the disputed rulings and the evidence at issue, because that context helps to explain defendant's arguments and our analysis. We then consider defendant's legal arguments.

A. Context at Trial

1. State's Direct Case

The key issue at trial was whether defendant or Herlong shot Copp. The state sought to prove that defendant was the shooter by introducing evidence that defendant had been the only person in the house with Copp when Copp was shot, that defendant had been armed with the murder weapon during the crime, that defendant had owned the murder weapon, and that defendant had been the leader of the group and therefore the one most likely to have shot Copp. Although no witness testified to seeing defendant shoot Copp, several witnesses testified that defendant had been the only person inside the house with Copp when they had heard a shot. No witnesses testified to seeing Copp alive after they heard the shot. The state's witnesses also testified that ballistics tests showed that Copp had been shot with the.45-caliber pistol that defendant owned, that defendant had carried that pistol when he and the others had entered Copp's house, and that defendant had pawned the pistol in Reno following the murder.

Herlong testified that he had seen defendant fire the gun at least once before. On one such occasion, in the week preceding the murder, Herlong saw defendant fire the gun through an open car window and say, "I feel like killing somebody." Defendant did not object to that testimony. The state submitted an offer of proof in which Herlong testified to the full circumstances surrounding the incident—that the incident had occurred on the same day that Herlong and defendant had gone to a sandwich shop planning to rob it and that defendant also had fired the pistol into the back door of the sandwich shop. However, that evidence was not presented to the jury at that time.

Gates testified about the events that had occurred on the night of the murder and about the subsequent trip to Reno. When the state began to question her about whether defendant had suggested, during the trip to Reno, that she prostitute herself to make money for the group, defendant objected that any testimony regarding that incident was irrelevant and overly prejudicial. The trial court ruled that that evidence had "some limited relevance" but sustained that objection because "[i]t's taking us too far afield for reasons that aren't going to give us enough to make that trip worthwhile."

2. Defendant's Direct Case

In defendant's direct testimony, he presented himself as a passive participant in the crimes. He stated that his wife had purchased the murder weapon and that he never had fired it. He testified that he just "went along with" the planning and execution of the Copp robbery and that he had tried to stop Herlong and Givens from harming the victims. He claimed that he had loaned Herlong the murder weapon on the night of the murder, that he had not been armed at the crime scene, and that Herlong had carried the murder weapon during the robbery. He testified that Herlong, not he, had been the last robber in the house; that, after the murder, he had tried to give the robbery proceeds to the others who were involved and to distance himself from them; and that Herlong and Gates had wanted to go to Reno after the murder and defendant merely had "help[ed them] out." Defendant also repeatedly denied having been the leader of the group.

On cross-examination, the state sought to question defendant about whether he ever had fired the murder weapon and about the prostitution discussion. First, the state asked defendant about Herlong's testimony that defendant had fired the gun before:

"A. No, that did not happen. I've never fired that gun before.

"Q. Never?

"A. No, I have not fired that gun before."

The state then questioned defendant about the events following the murder, including the trip to Reno. The state asked defendant whether he had asked Gates "to do anything in Reno to make money." He denied any such conversation, and stated, "I never asked her to do anything for money for me."

At that point, ...