State v. Hale

Decision Date14 August 2003
PartiesSTATE of Oregon, Respondent, v. Conan Wayne HALE, Appellant.
CourtOregon Supreme Court

Mary M. Reese, Deputy Public Defender, Salem, argued the cause for appellant. With her on the briefs was David E. Groom, State Public Defender.

Janet A. Metcalf, Assistant Attorney General, Salem, argued the cause for respondent. With her on the brief were Hardy Myers, Attorney General, Mary H. Williams, Solicitor General, and Jonathan Fussner, Timothy Sylwester, and Joanna L. Jenkins, Assistant Attorneys General.

Before CARSON, Chief Justice, and GILLETTE, DURHAM, RIGGS, De MUNIZ, and BALMER, Justices.1


This case comes before this court on automatic and direct review of defendant's judgments of conviction and sentences of death. ORS 138.012(1); ORAP 12.10(1). Defendant seeks reversal of his convictions and sentences of death for 13 counts of aggravated murder involving three victims, as well as reversal of his convictions for five counts of kidnapping in the first degree, one count of rape in the first degree, two counts of sodomy in the first degree, one count of unlawful sexual penetration in the first degree, and one count of sexual abuse in the first degree. In the alternative, defendant asks this court to vacate his sentences of death and remand the case for resentencing. For the reasons that follow, we reverse six of the 13 convictions of aggravated murder and remand those charges to the trial court for further proceedings. We affirm the other convictions and the sentences of death. In addition, because we agree with defendant that the aggravated murder convictions involving the same victims merge, we also remand the remaining convictions of aggravated murder for entry of a corrected judgment reflecting three convictions for aggravated murder based on alternative aggravating factors and imposing a single sentence of death for each conviction.


Because the jury found defendant guilty, we review the evidence in the light most favorable to the state. State v. Compton, 333 Or. 274, 276, 39 P.3d 833, cert. den., 537 U.S. 841, 123 S.Ct. 165, 154 L.Ed.2d 64, reh'g den., 537 U.S. 1068, 123 S.Ct. 653, 154 L.Ed.2d 559 (2002).

In late 1995, defendant, then 19, and his friend, Jon Susbauer, then in his early twenties, began committing a series of burglaries and robberies in the Eugene area. As pertinent here, on December 14, 1995, defendant and Susbauer broke into a woman's home, stole several thousand dollars worth of her property, and slashed a couch and a stereo speaker with a knife before leaving.

At around midnight on December 16, 1995, defendant and Susbauer drove up beside a car parked on an isolated road in a remote wooded area in Eugene. The men were in a silver, Chevrolet Suburban that Susbauer had stolen a few weeks earlier. Two teenagers, Kara Krause and Jesse Jarvis, were in the parked car. The person on the passenger side of the Suburban got out, approached the parked car, and knocked on the window. He told the couple that they were on his property but that they could stay. He then returned to the Suburban and Jarvis heard laughter. The Suburban drove off.

A few minutes later, Jarvis heard a man yelling. Jarvis got out of the parked car to investigate and, he later testified, a man "jumped out of nowhere." The man was large and stocky. He was dressed in dark clothing and wore a long coat. His head and face were covered with some kind of mask or scarf; only his eyes were visible. He carried something that looked like a machete and was swinging it like a sword. He spoke in a low rough growl and threatened Jarvis with the machete. He ordered Krause out of the car and told them both to take off their clothes and shoes. When they had complied, the man threw the couple's car keys, clothes, and shoes into the woods. The man forced Jarvis to lie on the ground and Krause to lie across the hood of the car. He threatened Krause with the blade of the machete and sexually assaulted her.

Jarvis later told police that he thought that the person who claimed to be the "property owner" and the rapist were different people. Weeks later, at two police lineups, Jarvis identified Susbauer as the "property owner" and defendant possibly as the rapist. Krause was not able to identify the rapist when shown the same lineups.

On December 19, 1995, defendant and Susbauer broke into another house and again stole thousands of dollars worth of property including, among other things, a rabbit-fur jacket, a .38 caliber Taurus revolver with wooden grips, and 25 rounds of ammunition for the revolver. Before they left, they again slashed the furniture with a knife.

Late in the evening on December 20, defendant and Susbauer were riding around in the stolen Suburban. Susbauer was driving. They saw defendant's former girlfriend, Kristal Bendele,2 15, her current boyfriend, Brandon Williams, 15, and two other young people, Patrick Finley, 13, and Michael Black, 15. Defendant and Susbauer drove toward them and parked the Suburban. Defendant got out of the Suburban. He was wearing a black trench coat and jeans. Defendant offered the teenagers a ride, which Bendele, Williams and Finley accepted. Black declined. As Black walked away, he saw the Suburban slowly drive off in a different direction.

The next afternoon, December 21, 1995, two men found the nude bodies of Williams and Bendele at a logging landing on McGowan Creek. Bendele had been shot twice, once in the back and once in the left temple. Williams had been shot five times; three shots were to the head and face, one to the chest, and one to the back. Finley, barely alive, also was lying nearby. He, too, had been shot twice, once in the head and once in the shoulder. Among other things, he was wearing the rabbit-fur jacket that defendant and Susbauer had stolen in the earlier burglary. Finley died four days later without ever regaining consciousness.

Police visited Susbauer at his home on December 24, 1995, and seized the .38 caliber Taurus revolver stolen during the December 19 burglary. On December 26, police searched defendant's bedroom. There, they seized a black trench coat and a machete.

The Taurus revolver later was proved to be the murder weapon; all the bullets recovered at the scene and from the bodies of the victims had been fired from that gun. Testing of the grip of the revolver revealed a mixture of DNA patterns, the most predominant of which matched that of Bendele. Semen obtained from Bendele's mouth, vagina, and anus was identified as Susbauer's. Semen on Bendele's shirt and on the rabbit fur jacket that Finley was wearing was identified as defendant's.

Defendant and Susbauer both were charged with aggravated murder and various other crimes in the murders of Bendele, Williams, and Finley, in the assault on Jarvis and Krause, and in the December 14 and December 19 burglaries. Susbauer agreed to cooperate and pleaded guilty to, among other things, three counts of aggravated murder. Thereafter, the district attorney decided to seek the death penalty only against defendant.

At the ensuing trial, defendant's theory was that Susbauer was the rapist and killer and that he, defendant, merely was in the wrong place at the wrong time. Susbauer's story was the opposite: Defendant was the director of the abuse and murderer of all the victims; Susbauer was a secondary—and, in part, unwilling—accomplice. The jury rejected defendant's theory and convicted him of 13 counts of aggravated murder and multiple noncapital crimes arising out of the burglaries and the attack on Krause and Jarvis.

Defendant was sentenced on the noncapital crimes at the conclusion of the guilt-phase trial. The trial court then conducted a penalty-phase trial on the aggravated murder convictions. In that proceeding, the jury determined that defendant had acted deliberately in committing the murders, that he posed a continuing risk to society, and that he should receive a death sentence. The trial judge then entered a sentence of death.

On review, defendant raises 33 assignments of error, most of which are not well taken and do not require separate discussion. We analyze defendant's arguments respecting those assignments of error that do require discussion under three headings: pretrial issues, guilt-phase issues, and penalty-phase issues.


Defendant raises eight assignments of error respecting matters that he raised in pretrial motions. Three of those assignments raise constitutional challenges to the Oregon death-penalty statute that this court previously has considered and rejected. Another presents a constitutional challenge to the exclusion of convicted felons and nonregistered voters from the jury pool that this court previously has considered and rejected. None of those assignments of error warrants additional discussion.

Defendant also demurred to the form of the indictment in this case on the ground that the six aggravated murder counts that alleged that he had committed murder to conceal the crime of third-degree sexual abuse and to conceal the identity of the perpetrator of the crime of third-degree sexual abuse (counts 20, 21, 27, 29, 35, and 37) were impermissibly vague.3 Specifically, defendant argued to the trial court that

"[defendant] is entitled to notice of the particulars of the offenses he is alleged to have committed. The offenses of sexual abuse in the third degree * * * are not charged anywhere in the indictment.
"The indictment does not say who is or were the victims of the offense of sexual abuse in the third degree. That's not set forth anywhere in the indictment. There are three decedents who are all potential victims of that crime. There's also Jonathan Susbauer, who is claiming to be a victim of some sort.
"The indictment does not say in what county the offense of sexual abuse in the third degree was committed.

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