State v. Johnson

• Citation: 313 Or. 189,832 P.2d 443
• Parties: STATE of Oregon, Respondent, v. Stressla Lynn JOHNSON, Appellant. TC C87-10-35653; SC S26084.
• Decision Date: 25 August 1992
• Court: Supreme Court of Oregon

Page 443

832 P.2d 443

313 Or. 189

STATE of Oregon, Respondent, v. Stressla Lynn JOHNSON, Appellant.

TC C87-10-35653; SC S26084.

Supreme Court of Oregon In Banc.

Argued and Submitted March 5, 1991.

Decided May 6, 1992.

Reconsideration Denied Aug. 25, 1992.

Phillip M. Margolin, Portland, argued the cause and filed the brief and supplemental brief for appellant; Stressla Lynn Johnson, pro se, filed appellant's reply brief.

Brenda J Peterson, Asst. Atty. Gen., Salem, argued the cause for respondent. With her on the brief were Dave Frohnmayer, Atty. Gen.; Virginia L. Linder, Sol. Gen.; Cynthia A. Forbes, Diane S. Lefkow, and Janet A. Metcalf, Asst. Attys. Gen., Salem.

UNIS, Justice.

This case is before this court on automatic and direct review of judgments of conviction for aggravated murder and sentences of death. ORS 163.150(1)(g). A jury found defendant, Stressla Johnson, guilty of two counts of aggravated felony murder, two counts of aggravated murder, one count of murder, one count of rape in the first degree and one count of sexual abuse in the first degree, involving a single victim. Following the findings by the jury during the penalty phase, the court entered a judgment sentencing defendant to death on the two convictions for aggravated felony murder and the two convictions for aggravated murder. Defendant seeks reversal of his convictions and sentences of death, asserting numerous assignments of error.

Because the jury found defendant guilty, we state the facts in the light most favorable to the state. State v. Pinnell, 311 Or. 98, 100, 806 P.2d 110 (1991).

Beverly Gail Wilder, the victim in this case, lived in a North Portland one-bedroom apartment with her 18-month-old son. When Wilder was killed, she was 34 years old. Wilder's apartment was located about one-half mile, or a 15-minute walk, from defendant's mother's apartment, where defendant was living when Wilder was killed. In July or August 1987, Wilder met defendant through a mutual friend; defendant told that friend that he found Wilder attractive and was sexually interested in her. Defendant occasionally visited Wilder at her apartment.

Wilder spent the afternoon of October 8, 1987, socializing and drinking alcohol with friends and neighbors. That night, Wilder returned to her apartment with her son after visiting a friend. Demetrious Johnson, ¹ who lived in the same apartment complex and knew Wilder, saw defendant, Wilder, and Wilder's son walking to a nearby market around 11:30 p.m. When the group emerged from the store, Demetrious spoke with them and then watched them walk back toward Wilder's apartment. Thirty minutes later, Demetrious went to Wilder's apartment. He found defendant sitting at the kitchen table. Both defendant and Wilder were drinking beer. Demetrious ate a sandwich and then returned to his own apartment, leaving Wilder alone with defendant.

The next morning, on Friday, October 9, a neighbor discovered Wilder's body in her bedroom. Her naked body lay partially on its back and its side at the end of the bed, with the feet on the floor. Her body was mostly covered with a bedspread. A telephone cord was wrapped nine times tightly around her neck. Part of the bedding was caught up in the telephone cord. The telephone cord had been taken from a telephone that sat in its usual position in the living room. An open telephone book lay next to the telephone. The apartment had been ransacked, although nothing appeared to have been taken, and there were no signs of forced entry. An empty glass and a beer can were on the kitchen table. Defendant's fingerprints were later found on the glass, beer can, and telephone.

The autopsy revealed that the cause of death was asphyxiation by ligature strangulation. The estimated time of death was 2 a.m. Wilder was intoxicated when she died, and she had injuries to her face and the side of her head. The vagina contained sperm, and small tears were found at the outlet of the lower portion of the vagina and the anus, suggesting that Wilder had been sexually assaulted.

On the same day that Wilder's body was discovered, defendant helped a family move from Vancouver, Washington, to Portland. Ronette Stewart, a member of the family that was moving, overheard defendant mumble, "I had to do it. She was getting on my nerves. I just had to do it." Ronette's sister, Kebala Dorn, also heard defendant say, "The police are after me and I don't know why I did it."

Defendant was arrested for Wilder's murder. At his trial, the jury heard evidence concerning the murder of Bobbie Jean Johnson. ² Bobbie Jean was 53 years old when she died. She lived in a one-bedroom apartment in North Portland, located across the street from defendant's mother's apartment, where defendant was living when Wilder died. Defendant met Bobbie Jean on March 13, 1987, when her boyfriend, Johnnie Warren, brought defendant to Bobbie Jean's apartment. Defendant sold some frozen meat to Warren and then stayed to visit with Warren, Bobbie Jean, and Bobbie Jean's friend, Wanda Baker. Warren made defendant leave the apartment when he became upset with the amount of attention that defendant was giving to Bobbie Jean.

On March 19, Bobbie Jean and Baker bought two six-packs of Colt .45 Malt Liquor. Although Bobbie Jean's favorite drink was milk and brandy, there was no alcohol in Bobbie Jean's apartment other than the beer. Bobbie Jean and Baker spent the evening in Vancouver, Washington, returning to Bobbie Jean's apartment about 1 a.m. When Baker left the apartment about 2 a.m., there was nothing on the coffee table except two white ceramic ashtrays, which were both clean.

Bobbie Jean was found murdered the following morning, on Friday, March 20. Her body lay on the apartment floor; her nightgown was pulled up around her waist, and her legs were spread apart. A telephone cord was wrapped five times tightly around her neck. Nothing appeared to have been taken from the apartment, and there were no signs of forced entry. On the coffee table sat two Colt .45 beer cans, a jar containing a mixture of milk and brandy, the two white ceramic ashtrays, and a glass ashtray. There were two cigarette stubs in one of the two white ceramic ashtrays and four cigarette stubs in the glass ashtray. The glass ashtray sat on top of a folded newspaper. A white envelope also lay on the coffee table, with "Steve Jacobsen" and "235-3041" written on it. An expert testified at trial that defendant wrote "Steve Jacobsen" and the numbers "2," "3," "5," and "0." Defendant's fingerprints were found on both beer cans.

The autopsy revealed that the cause of death was asphyxiation by ligature strangulation. The estimated time of death was between 2 and 5 a.m. Bobbie Jean was intoxicated when she died, and she had injuries to her face and the side of her head. There were bruises on the back of the right hand and wrists, left knee and thigh, and extensive bruising on the top of the right foot. There was blood and a bruise at the opening of the vagina, suggesting sexual assault. The hyoid and thyroid bone (the "adam's apple") was fractured, indicating that Bobbie Jean was manually strangled as well as strangled with a telephone cord.

Defendant contends that the trial court erred in the guilt-acquittal phase of the trial in admitting, over his objection, evidence concerning the prior unrelated murder of Bobbie Jean. After hearing evidence at a pretrial hearing, the trial court ruled that evidence of Bobbie Jean's murder was relevant and admissible to identify defendant as the perpetrator of the Wilder murder based on modus operandi. The trial court found that the murders of Bobbie Jean and Wilder were so nearly identical as to earmark the crimes as the handiwork of a single person, that there was sufficient evidence that defendant murdered Bobbie Jean, and that the probative value of the evidence of the Bobbie Jean murder was not substantially outweighed by the dangers and considerations set forth in OEC 403. ³ Our task is to determine whether the record supports this ruling. State v. Pinnell, supra, 311 Or. at 109, 806 P.2d 110.

The general rule is that the state may not introduce evidence of other crimes, sometimes referred to as uncharged misconduct evidence, ⁴ committed by the accused unless the evidence is introduced for some relevant purpose other than to suggest that, because the accused is a person of criminal character, it is more probable that the accused committed the crime for which he or she is on trial. State v. Walton, 311 Or. 223, 232, 809 P.2d 81 (1991); State v. Pinnell, supra, 311 Or. at 103, 806 P.2d 110. Although other crimes evidence may not be used as circumstantial evidence to show criminal character, such evidence may be admissible to prove relevant facts such as "motive, opportunity, intent, preparation, plan, knowledge, identity, or absence of mistake or accident." OEC 404(3). ⁵ See State v. Pinnell, supra, 311 Or. at 104-06, 806 P.2d 110 (discussing rule); State v. Pratt, 309 Or. 205, 210, 785 P.2d 350 (1990) (stating and applying rule); State v. Johns, 301 Or. 535, 542-559, 725 P.2d 312 (1986) (discussing and applying rule).

A three-part test governs the admissibility of "other crimes" evidence under OEC 404(3): (1) The evidence must be independently relevant for a noncharacter purpose; ⁶ (2) the proponent of the evidence must offer sufficient proof that the uncharged misconduct was committed ⁷ and that defendant committed it; and (3) the probative value of the uncharged misconduct evidence must not be substantially outweighed by the dangers or considerations set forth in OEC 403. Each of these requirements must be satisfied before uncharged misconduct evidence is admissible under OEC 404(3). Before this court, defendant claims, as he did before the trial court, that evidence concerning the murder of Bobbie Jean was not admissible because none of these three requirements was met. He argues that the introduction into evidence of ...