State v. Johnson

• Decision Date: 19 April 2007
• Docket Number: No. SC S51313.,No. CC 98C46239.,CC 98C46239.,SC S51313.
• Citation: 342 Or. 596,157 P.3d 198
• Parties: STATE of Oregon, Plaintiff on Review, v. Jesse Lee JOHNSON, Defendant on Review.
• Court: Oregon Supreme Court

157 P.3d 198

342 Or. 596

STATE of Oregon, Plaintiff on Review, v. Jesse Lee JOHNSON, Defendant on Review.

No. CC 98C46239.

No. SC S51313.

Supreme Court of Oregon.

Argued and Submitted September 7, 2006.

Decided April 19, 2007.

Ingrid A. MacFarlane, Portland, argued the cause and filed the briefs for defendant on review.

Kathleen Cegla, 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, and Mary H. Williams, Solicitor General.

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

KISTLER, J.

This case is before us on automatic and direct review of defendant's judgment of conviction and sentence of death. See ORS 138.012 (providing for direct review in the Supreme Court when the jury imposes a death sentence). On review, defendant assigns error to 23 of the trial court's rulings. For the reasons set out below, we affirm defendant's conviction and sentence of death.

Because the jury found defendant guilty, we state the facts in the light most favorable to the state. State v. Gibson, 338 Or. 560, 562, 113 P.3d 423, cert. den., ___ U.S. ___, 126 S.Ct. 760, 163 L.Ed.2d 591 (2005). On March 20, 1998, the victim was found lying on her living room floor, stabbed to death. An acquaintance of the victim told the police that defendant had been in the victim's home the day before she was murdered.¹ Another witness reported seeing a person who matched defendant's appearance walk away from the victim's home shortly after the murder. Police officers later found defendant's fingerprints in the victim's home.

On March 27, seven days after the victim's death, two police officers arrested defendant for a probation violation. When the officers arrested him, they seized his jacket, which was similar to the one that the person walking away from the victim's home had been wearing. Before leaving with the officers, defendant put on a pair of heavy work boots. One officer noticed that the pattern on the soles of defendant's boots was consistent with a shoe impression found in blood at the crime scene.

After they arrived at the police station, the officers advised defendant of his Miranda rights and spoke with him concerning the murder. During their conversation, defendant admitted that he had known the victim but maintained that he never had been to her home even after the officers told him that his fingerprints had been found there. After the interview, the officers seized defendant's clothing and boots placed them in an evidence locker, and booked defendant into the Yamhill County Jail on the probation violation charge.

One of the officers interviewed defendant a second time on April 17, 1998. By that time, the police had spoken with a number of people who had reported seeing defendant in possession of the victim's jewelry shortly after her death. One of those witnesses told the police that defendant had showed him some of the victim's jewelry and then said, "I offed the bitch to rob her." When the officer asked defendant whether the witness was lying when he reported that defendant had made that statement, defendant replied, "No, he's not."

The state charged defendant with aggravated murder on June 25, 1998, and trial was set to begin on September 8, 1999. Before trial, defendant moved to suppress some of the state's evidence, including the clothing and boots that the officers had seized during their first interview with him. On August 20, 1999, the trial court suppressed that evidence, reasoning that the officers did not have a warrant to seize defendant's clothing and that the inevitable discovery doctrine did not apply. The state pursued two pretrial appeals regarding the seized clothing. Neither appeal was successful. The case against defendant went to trial on March 8, 2004, and the jury found him guilty of aggravated murder and sentenced him to death.

As noted, defendant assigns error to 23 of the trial court's rulings. Among other things, defendant argues that the trial court erred in denying his motion to prevent the officers from commenting at trial on his invocation of his constitutional right to silence, in denying his motions to dismiss the charges because the state denied his statutory and constitutional rights to a speedy trial, and in ruling that, if defendant presented expert testimony regarding footprints left at the crime scene, he would open the door to the introduction of evidence that the trial court had suppressed. We discuss those rulings below and affirm without further discussion the remainder of the rulings to which defendant assigns error.²

We begin with defendant's argument that, at trial, the officers impermissibly commented on the exercise of his right to remain silent. Defendant filed a pretrial motion to suppress statements that he had made to police officers on March 27 and April 17, 1998. He contended that he had not knowingly and intelligently waived his rights under Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966). At the hearing on that motion, the state offered evidence that the officers had advised defendant of his Miranda rights and that he had spoken with them after receiving that advice.

The evidence at the hearing also revealed that defendant had not answered all the officers' questions. Sometimes, defendant had responded, "I don't know what you're talking about." Other times, defendant would pause, the officers would repeat or clarify the question, and then defendant would respond. Still other times, defendant would simply remain silent in response to a question. Ultimately, defendant told the officers that he did not want to talk to them anymore and, after that point, made no further statements.

After the hearing on his suppression motion, defendant filed a supplemental memorandum based on the officers' testimony during the hearing. In that memorandum, defendant identified specific instances in which he had remained silent in response to the officers' questions. Defendant argued that evidence of his silence was not admissible for two reasons. First, he contended that his silence did not qualify as an adoptive admission under the Oregon Evidence Code. Alternatively, he argued that introducing evidence of his silence at trial would be an impermissible comment on the exercise of his constitutional right to remain silent.

The state argued, in response to the evidentiary issue raised in petitioner's supplemental memorandum, that it intended to introduce evidence of his silence only for the purpose of proving that his statements to the officers were voluntary. On the constitutional issue, the state argued that defendant's silence, when viewed in context, did not constitute an invocation of his right to remain silent. The state reasoned:

"Your honor, I guess what it boils down to on this issue is that the State is asking you to look at all of the circumstances, to recall that the defendant was able to and did exercise certain of his rights or at least rights that he perceived that he had and to, from that, infer that the defendant was not engaging in an invocation of his right to silence when he was not responding to certain questions but was rather simply pausing before answering questions and thinking about them, which is really what I believe the record reflects * * *."

The trial court accepted the state's argument on the constitutional issue and "f[ound] that the defendant did not implicitly invoke his right to remain silent." The court was concerned, however, that testimony regarding defendant's silence, even if relevant to prove voluntariness, was more prejudicial than probative. Applying that standard, the trial court ruled that two instances of defendant's silence in response to the officers' questions were admissible but that the other instances of silence that counsel had identified were not.³

At trial, the officer who had interviewed defendant did not testify regarding the two instances of silence that the trial court had ruled would be admissible, nor did he testify regarding any other instance of silence that defendant had identified in his supplemental memorandum. Rather, the officer testified as follows:

"Well, the first thing that I told [defendant] was — was that we've continued to investigate this; we've developed more information. And I just simply told him `I don't have any doubt you were there. I think you were there at the time of the homicide. And — you know — the issue with us is that we at this point need to know what your involvement is.' While I'm talking with him saying, `Hey. I need to talk to you about a murder,' he is almost casual in his appearance. He's got his arms crossed. He's looking away, down, kind of off to the side of his lap. He would be nonresponsive to some statements and questions, so I'd have to repeat them to get him to respond to me. I told him that — you know — `Hey. I really need to talk to you about this situation. And I know you were there when this happened.' And his response to that was to say, `I don't know what you're talking about.' And I would follow that up with, `Well, I'm talking about a murder. I'm talking where someone has been stabbed to death. Someone has stolen her jewelry, and people are saying you're the one involved in that.' And he would say, `I don't know what you're talking about.'"

The issue that defendant raises on review is narrow. He does not argue that, when he remained silent in response to the officers' questions, he invoked his right to silence and all questioning therefore had to stop. Cf. State v. Longo, 341 Or. 580, 592-93, 148 P.3d 892 (2006) (recognizing that selective refusal to talk on some subjects did not foreclose questioning on other subjects). Rather, he argues that his intermittent silences were selective invocations of his constitutional right to remain silent and that, when the officer testified at trial that...