State v. Haynes

• Decision Date: 16 August 2012
• Docket Number: (CC 110531963,SC S060103).
• Citation: 284 P.3d 473,352 Or. 321
• Parties: STATE of Oregon, Plaintiff–Appellant, v. Terry Lavell HAYNES, aka Terry Levell Haynes, Defendant–Respondent.
• Court: Oregon Supreme Court

352 Or. 321

284 P.3d 473

STATE of Oregon, Plaintiff–Appellant,

v.Terry Lavell HAYNES, aka Terry Levell Haynes, Defendant–Respondent.

(CC 110531963; SC S060103).

Supreme Court of Oregon, En Banc.

Argued and Submitted June 12, 2012.

Decided Aug. 16, 2012.

Jennifer S. Lloyd, Attorney–in–Charge, Criminal Appeals, Salem, argued the cause for plaintiff-appellant. With her on the briefs were John R. Kroger, Attorney General, and Anna M. Joyce, Solicitor General.

Peter Gartlan, Chief Defender, Office of Public Defense Services, Salem, argued the cause and filed the brief for defendant-respondent.

DE MUNIZ, J.

Defendant is charged with murder and manslaughter. Defendant filed two pretrial motions to exclude evidence, the first seeking to exclude evidence of five allegations of prior bad acts, and the second seeking to exclude defendant's interview with the police. The trial court granted in its entirety defendant's motion to exclude defendant's prior bad acts, and granted in part and denied in part defendant's motion to exclude the police interview. The state seeks direct review of both rulings pursuant to ORS 138.060(2)(a).¹ On review, the state seeks to reverse the trial court's rulings to the extent that the trial court granted defendant's motion to exclude with respect to one of the five alleged instances of prior conduct and granted in part defendant's motion to exclude the interview. Defendant, for his part, does not challenge the trial court's order denying in part his motion to exclude the interview, but urges this court to affirm the trial court's orders in all respects. For the reasons stated below, we conclude that the state did not adequately preserve in the trial court any of the arguments that it now advances on appeal with regard to the admissibility of the prior bad acts. In addition, we decline to consider the state's argument with regard to the partial exclusion of the interview because it assigns error to an order that the trial court did not make. We affirm the trial court's orders and remand the case to the trial court for further proceedings.

I. FACTS

Defendant is charged with committing a murder that is alleged to have occurred on the evening of May 6, 1994. The victim, a 62–year–old man who lived alone in a house on the corner of 7th and Skidmore in Northeast Portland, was discovered dead in his home on the morning of May 8, 1994. The victim's home was in disarray. A table had been overturned, a number of household items were broken and strewn throughout the house, and the refrigerator had been pushed away from the wall and left standing in the middle of the kitchen. The victim's wallet, containing cash, was found submerged in the toilet tank. The medical examiner determined that the victim's death was caused by excessive blood loss as a result of 31 stab wounds, 29 of which were located on the victim's forearms and characterized as “defensive” wounds. The medical examiner opined that none of the wounds would have been independently fatal, but for the severe loss of blood, and also noted that the victim's blood alcohol level was .49 percent at the time of his death.

The police conducted a search of the area surrounding the victim's home and discovered a bloody rag in an adjacent neighbor's shrubbery and a pair of bloodstained khaki pants, canvas shoes, and men's underwear behind a shrub in the yard of a home across the street. The police also interviewed several friends and acquaintances of the victim, who described the victim as a consistently heavy drinker and prone to inviting strangers, prostitutes, and street people into his home. However, the police were unable to identify any suspects, and the case went cold.

In 2010, a police cold case unit sent the items of clothing that had been found near the crime scene to the Oregon State Police Crime Laboratory for DNA testing. Forensic scientists at the crime laboratory reported that DNA from the bloodstains on the khaki pants and canvas shoes matched the victim's DNA profile, and that a second DNA profile found on the waistband of the khaki pants and on the men's underwear matched defendant's DNA profile. Defendant, who was known to the police from previous encounters, was located and brought to the police station for questioning.

The interview began conversationally. A cold case officer and another officer who apparently was familiar with defendant from previous encounters spoke casually with defendant about his family, where he had gone to high school, where he had been living recently, and a recent run-in that defendant had had with the police. After some time, defendant asked the officers to tell him why he was there. The officers then read defendant his Miranda rights and began questioning him about the time period surrounding the murder. The officers asked defendant what he had been doing around 1994. Defendant responded that he could not remember, but he thought he was either in prison or in Job Corps. The officers asked defendant if he remembered knowing anyone named “Raymond” (the victim's name) living in Northeast Portland back in 1994. Defendant responded that he knew a “light skinned dude” named Raymond “from treatment,” but could not recall knowing anyone named Raymond who had lived in Northeast Portland. When asked generally whether he ever spent time around the Skidmore area in 1994, defendant volunteered that his sister lives on 7th and Skidmore, but denied knowing or remembering any neighbor of his sister's named Raymond. Defendant told the officers that he had been working the streets and drinking and using drugs back then, and that he really could not remember much from that time period.

The officers then asked defendant (who apparently worked as a crossdressing prostitute) whether he ever had had any violent encounters with “johns” or whether any “johns” ever had attacked him in a house. Defendant related various encounters in which he had been attacked by “johns,” but again denied any memory of anything from 1994, anyone named Raymond, or anything happening around Skidmore Street. When the officers told defendant that there had been a murder and that his DNA was “coming up” at the murder scene, defendant responded,

“You know what, I'm a hooker, I, I, I may, have ... * * * They could, I may have dated the person, I don't, you know what I'm saying, but ... * * * I'm not into hurting people. * * * You know, I've, I've had to fight to get away from people trying to harm me, but, you know, hurting people or huh-uh.”

The officers then asked defendant whether he remembered ever getting arrested with an old man in Vancouver, Washington.² Defendant responded,

“Yeah, the guy tried to take me out in the woods and he had a gun. * * * I do remember that, the guy had a gun he tried to take me out in the woods and the reason why I remember that is because they tried to give me 25 years over there. * * * I got a DUI, uh, and I remember from that is that I had, I got, I ended up with a DUI and that's it, but anyway, I'm, you know ...”

Defendant then ended the interview by invoking his right to counsel.

II. PRIOR BAD ACTS

A. Procedural Background

In his motion to exclude prior bad acts, defendant moved to exclude from evidence five allegations of robbery that he thought that the state would seek to admit at defendant's trial. Defendant described the five incidents as follows: ³

“In the robbery charge from 09/06/1994, [defendant] was accused of walking into a man's office, grabbing a wallet off his desk, punching the victim, and running away. [Defendant] was acquitted by a jury of this charge.

“In the robbery case from 05/06/1994, [defendant] was suspected of entering a man's car while it was stopped at a stop light, threatening the man with violence, and stealing his wallet. Additionally, [defendant] was suspected of forcing the victim to drive to his home. There, [defendant] supposedly met up with an accomplice. [Defendant] and the accomplice were accused of trying to take more money from the victim and then fleeing with the victim when seen by others.

“In the robbery charge from 07/11/1997, [defendant] was alleged to have forced his way into a stopped car. [Defendant] was accused of threatening the driver, stealing his wallet, and running away. The charges against [defendant] were presented to a grand jury and it was not a true bill.

“In the robbery case from 03/28/1998, [defendant] was accused of helping a prostitute rob a client at a motel. [Defendant] was accused of tackling the client and taking his credit card off of the floor. The charges against [defendant] were dismissed.

“Lastly, in the robbery case from 08/29/07, [defendant] was accused of entering a stopped car, threatening the driver with a weapon which the driver never actually saw, hitting the driver, taking his car keys, and fleeing. [Defendant] was acquitted by a jury on this charge.”

Defendant argued that evidence of those five incidents should be excluded as “inadmissible character evidence” under OEC 404(3), which provides that:

“Evidence of other crimes, wrongs or acts is not admissible to prove the character of a person in order to show that the person acted in conformity therewith. It may, however, be admissible for other purposes, such as proof of motive, opportunity, intent, preparation, plan, knowledge, identity, or absence of mistake or accident.”

In support of that argument, defendant identified three nonpropensity purposes that, according to defendant, could not be used to justify admission of the prior bad acts—identity, intent, and motive.

The state filed a brief in response that, while styled as a “Memorandum of Law in Response to Defendant's Motion to Exclude Prior Acts,” also purported affirmatively to move the trial court for an order “allowing the prosecution to admit evidence of five incidents during which [defendant] took or attempted to take the property of another person by force.” The state substituted two different incidents, both from ...