State v. Johnson

• Decision Date: 30 March 2006
• Docket Number: (CC C011654CR; C990528CR; SC S48826).
• Citation: 340 Or. 319,131 P.3d 173
• Parties: STATE of Oregon, Plaintiff on Review, v. Martin Allen JOHNSON, Defendant on Review.
• Court: Oregon Supreme Court

131 P.3d 173

340 Or. 319

STATE of Oregon, Plaintiff on Review,

v.

Martin Allen JOHNSON, Defendant on Review.

(CC C011654CR; C990528CR; SC S48826).

Supreme Court of Oregon.

Argued and Submitted September 8, 2005.

Decided March 30, 2006.

COPYRIGHT MATERIAL OMITTED

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

Janet A. Klapstein, Assistant Attorney General, Salem, argued the cause and filed the brief for plaintiff on review. With her on the brief were Hardy Myers, Attorney General, Mary H. Williams, Solicitor General, Douglas F. Zier, Assistant Attorney General, and Paul L. Smith, Assistant Attorney General.

Before CARSON,^* Chief Justice, and GILLETTE, DURHAM, RIGGS, DE MUNIZ,^** BALMER, and KISTLER, Justices.

GILLETTE, J.

This case is before us on automatic and direct review of defendant's judgment of conviction and sentence of death. Defendant raises numerous assignments of error, none of which are well taken. We therefore affirm the judgments of conviction and the sentence of death.

The case began at 6:30 a.m. on February 24, 1998, when a young woman's body was discovered in the surf on a beach near Warrenton. Within a few days, the Clatsop County Sheriff's Office positively identified the body as that of Heather Fraser, a Portland-area teenager. In the meantime, a forensic pathologist examined the body and concluded that Fraser had died by strangulation.

An investigator¹ interviewed Fraser's family and friends and learned that Fraser had left her Washington County home around 2:30 a.m. on February 23, 1998, ostensibly to go to the home of her friend "Marty" to play on his computer. No one in the Fraser home knew much about "Marty," but investigators found a telephone number for a "Marty" in Fraser's bedroom. That telephone number belonged to defendant, whose first name is "Martin." Investigators also interviewed Fraser's friend, Tate, who had met "Marty." Tate told them that "Marty" was an "older guy" who always was "hitting on" Fraser and who sometimes provided Fraser with alcohol and drugs.

Investigating officers focused on defendant. They learned, among other things, that defendant was on probation for federal drug crimes, that he drove a black Acura with distinctive vanity plates, and that, at 1:54 a.m. on February 24, 1998, a police officer had stopped him as he drove south on Highway 30, a principal road between the Warrenton area and the Portland area (where defendant lived).

Investigators sought and obtained warrants to search defendant's home and car and to obtain DNA samples from his person. When the police executed those warrants on February 28, 1998, they took defendant to the local sheriff's office and attempted to interview him. Defendant cut the interview short and asked to go home. The police did take him home and, after completing the search of defendant's home, left. The next afternoon, the police learned that defendant had absconded with his brother's car and credit cards and that his whereabouts were unknown. Defendant remained missing until police arrested him in Florida approximately one year later.

In the meantime, the Fraser murder investigation continued. Forensics technicians matched a bloodstain on the hatchback of defendant's black Acura to Fraser's DNA. Investigators also obtained evidence that defendant habitually preyed on underage girls, taking them to nightclubs, providing them with alcohol and drugs, engaging them in consensual sexual relations when possible and, most significantly, sexually abusing them while they were rendered unconscious by drugs that he had provided to them. Finally, they learned that Fraser had a significant amount of morphine in her system when she died and that her vaginal cavity contained semen whose DNA matched defendant's DNA.

On the basis of the foregoing evidence, a Washington County grand jury issued an indictment on March 11, 1999, charging defendant with six counts of aggravated murder. On June 15, 2001, a grand jury issued a new indictment charging defendant with eleven counts of aggravated murder. The case came to trial. At the close of the evidence, the trial court granted defendant's motion for a judgment of acquittal with respect to three of the charges. The jury convicted defendant of the remaining eight aggravated murder counts and voted to impose the death penalty. After the trial court entered judgment, defendant filed the present direct appeal, raising 35 assignments of error in an initial brief and 13 assignments of error in a supplemental pro se brief. As we shall explain, we have considered each of those claims of error and reject them all.

For convenience, we have divided defendant's assignments of error by topic and have confined our analytical statements to those assignments of error under each topic that merit discussion.

I. SEARCH AND SEIZURE ISSUES

A. Background

Defendant's first ten assignments of error pertain to the trial court's denial of various motions to suppress evidence that the police obtained pursuant to a series of search warrants. Eight of those assignments pertain to motions that the trial court refused to hear on timeliness grounds. Defendant offers no argument to this court that the trial court erred in refusing to hear the motions and, on this record, that decision appears to have been well within the trial court's discretion. We conclude that the trial court's denials of the eight motions to suppress are not properly before this court.

We turn to the two suppression motions that were timely filed and whose merits the trial court did consider. The factual background relevant to those motions is as follows. On February 28, 1998, an investigator executed an affidavit requesting warrants to search a specified black Acura automobile and a specified Washington County address for evidence of various crimes, including murder. In the affidavit, the officer described the discovery of Fraser's body; the conclusion of a forensic pathologist that she had been strangled; reports from Fraser's mother and other members of the Fraser household of Fraser's intent to go to "Marty's" to "play on his computer"; a report that "Marty" had called the Fraser home shortly before Fraser left on the morning of February 23, 1998; a report by Fraser's friend, Tate, that "Marty" was an "older guy" who was always "hitting on" Fraser and who may have raped or sexually abused Fraser when Fraser was knocked out on drugs that "Marty" had provided; the discovery of a cellular telephone number for "Marty" in Fraser's bedroom; the fact that the telephone number had been traced to defendant; the fact that at least 40 telephone calls had been placed to Fraser's home from defendant's telephone in the previous three months; the fact that defendant was on probation for federal drug offenses; the fact that defendant had been stopped in his black Acura on Highway 30 a few hours before Fraser's body was discovered near Warrenton; and the fact that Highway 30 runs between the Warrenton area on the coast and the Portland area where defendant lived. The affidavit ended with a request for warrants to search a specified address and a black Acura with the "TIGERL" license plates. Notably, the affidavit contained no factual assertions connecting defendant or the Fraser murder to the specified address.

A judge issued the requested warrants, authorizing the police to search the residence and car for evidence, including but not limited to: "samples of earth, soil and sand, hair or other trace evidence," clothing and personal items belonging to Fraser and "any letters o[r] writing from or belonging to Heather Fraser, including any computer passwords or other identification purporting to belong to Heather Fraser."

Investigators immediately went to the specified address to execute the warrants. They found the black Acura parked in the driveway and had it towed to the Washington County sheriff's office, where they later subjected it to an intensive search that produced a single piece of evidence—a small bloodstain on the car's hatchback that matched Fraser's DNA. In the course of the search of the home, investigators discovered and seized a number of items, including three computers.

On March 4, 1998, an investigator executed an affidavit requesting warrants to search the electronic files contained in the three computers seized from defendant's home. The warrants issued on March 5, 1998, and the ensuing search turned up one important item of evidence: An electronic record showing that, at 5:00 a.m. on February 24, 1998, someone had used one of the computers to access a tide table for the Astoria/Warrenton area.

Finally, on March 12, 1998, an investigator executed an affidavit requesting a second warrant to search defendant's Washington County residence. That affidavit repeated much of what had appeared in the first affidavit described above, but also contained additional information: a brief description of the February 28, 1998, search of defendant's Washington County residence, including the fact that, in the course of that search, detectives had observed albums containing photographs of young girls, sometimes nude; information that, within a few hours of the February 28, 1998 search, defendant's brother had reported to police that defendant had absconded with the brother's car and credit cards; a report that one of defendant's co-workers had provided police with a copy of a personal "address book" of teen and preteen girls, which the coworker previously had printed from defendant's work computer; and reports of interviews with a number of young women and girls who claimed that defendant had administered drugs to them that made them sick or rendered them unconscious, and that, in some of those cases, defendant sexually abused the women while ...