State v. Langley

• Decision Date: 17 September 1992
• Docket Number: C-21624
• Citation: 314 Or. 247,839 P.2d 692
• Parties: STATE of Oregon, Respondent, v. Robert Paul LANGLEY, Jr., Appellant. CC 88-; SC S36746.
• Court: Oregon Supreme Court

Page 692

839 P.2d 692

314 Or. 247

STATE of Oregon, Respondent, v. Robert Paul LANGLEY, Jr., Appellant.

CC 88-C-21624; SC S36746.

Supreme Court of Oregon,

In Banc.

Argued and Submitted Jan. 9, 1992.

Decided Sept. 17, 1992.

Diane L. Alessi, Deputy Public Defender, Salem, argued the cause and filed the brief and reply brief for appellant. Also on the briefs were Sally Avera, Public Defender, and Stephen J. Williams, Deputy Public Defender, Salem. Robert Paul Langley, Jr., pro se, filed a supplemental 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., and Diane S. Lefkow and Janet A. Metcalf, Asst. Attys. Gen., Salem.

CARSON, Chief Justice.

This case comes before this court on automatic and direct review of a judgment of conviction and sentence of death. ORS 163.150(1)(g). Defendant seeks reversal of his conviction on 16 counts of aggravated murder related to the 1987 death of Anne Gray. Alternatively, he requests that his sentence of death be vacated.

Defendant presents several assignments of pre-trial error, seven assignments of error regarding the guilt phase of his trial, and three assignments regarding the penalty phase. We find no reversible error in the pre-trial phase, and, with one exception, no error in the guilt phase. We affirm all but one of defendant's convictions. We vacate the sentence of death and remand the case to the circuit court for further proceedings on the penalty phase.

I. FACTS

Because the jury found defendant guilty, we review the facts in the light most favorable to the state. State v. Williams, 313 Or. 19, 21, 828 P.2d 1006 (1992).

At the time Gray was murdered, defendant was a prison inmate who lived in a cottage on the grounds of the Oregon State Hospital in Salem while he participated in a residential Correctional Treatment Program (CTP) for mentally and emotionally disturbed inmates. The CTP in which defendant was enrolled is a transition program in which a mentally or emotionally disturbed inmate, nearing the end of a prison term, receives extensive psychological counseling, learns job and independent living skills, and is assisted in establishing a productive life in the community.

Defendant entered the program in April 1986, after having served approximately 13 years in prison. With the exception of a two-week period in November 1986 during which defendant was returned to prison to "re-evaluate his commitment to treatment," he remained in the program until April 1988. As his integration into the community progressed during late 1987, defendant left the hospital grounds regularly on lengthy, unsupervised passes. Defendant was required to list planned activities for each pass and to keep a detailed journal, but program personnel did not otherwise monitor his conduct. During the fall of 1987, defendant attended a job search class in Salem. There he met a woman named Sacha Thayer. Thayer became defendant's girlfriend and later introduced defendant to Gray. Gray lived alone in an apartment adjacent to Thayer's. Defendant often visited Thayer and Gray. Both women knew that defendant was an inmate re-entering the community through the treatment program.

Gray disappeared on December 10, 1987. Defendant acknowledges being the last person known to have seen her alive. He arrived at Gray's apartment shortly after 4:00 a.m. that day, allegedly to iron out details of an agreement that he claims to have had with Gray to sell all Gray's possessions so that she could go into hiding. Defendant claims that, sometime after 7:00 that morning, Gray left her apartment to go to Portland with an unidentified woman and that defendant remained in the apartment alone. According to defendant, Gray had confided in him several days earlier that she intended to leave town on the 10th and that a trip to Portland was to be the first step toward her purposeful disappearance. Gray had not mentioned a plan to disappear to anyone else. Her family, her friends, her employer, and her landlord were surprised and worried about her sudden disappearance.

In the days preceding Gray's disappearance, defendant had drawn a contract memorializing an alleged agreement for him to sell all Gray's possessions on a consignment basis. He had arranged for Thayer to witness the signing of that contract before Thayer left for work on the morning of December 10. At defendant's request, Thayer never discussed with Gray either the contract or the plan to disappear. When Thayer arrived at Gray's apartment that morning, what appeared to be Gray's signature already was affixed to the contract. ¹ While she was in Gray's apartment, Thayer neither saw nor heard Gray, but did note that the bedroom door was ajar and water was running in the bathroom. Defendant explained to Thayer that Gray was in the apartment but did not want to be seen.

During the evening of December 10, Thayer took her automobile, at defendant's direction, to meet defendant outside the apartment building where Thayer and Gray lived. Thayer and another neighbor saw defendant carrying a heavy, awkward bundle, wrapped in Gray's comforter, from Gray's apartment to Thayer's automobile. Thayer drove defendant to the home of Winona McCoy, defendant's aunt. Defendant then removed the heavy bundle from the automobile and carried it to McCoy's backyard. Twenty minutes later, defendant, his shoes and clothing covered with mud, returned to Thayer's automobile, carrying only Gray's then-muddy comforter. Several days later, police questioned defendant about the circumstances of Gray's disappearance but took no further action against defendant at that time.

Gray's decomposed body was discovered on April 15, 1988, in a shallow grave in McCoy's backyard. According to the medical examiner, Gray died of asphyxiation. Her body was very tightly bound in the fetal position by ten different bindings, including duct tape wrapped around her head to cover her nose and mouth, a shoestring-type ligature knotted tightly around her neck, and numerous bandages, tapes and ropes tied around her wrists, ankles, torso, and legs. Gray's asphyxiation was caused by both the neck ligature and the duct tape covering her nose and mouth.

The discovery of Gray's body followed by one day the discovery of the severely beaten and bound body of Larry Rockenbrant, another acquaintance of defendant's, in a shallow grave behind the Oregon State Hospital cottage in which defendant lived. ² Following a highly publicized trial, defendant was convicted of Rockenbrant's murder and sentenced to death. Because of the prosecutor's theory that defendant had killed Rockenbrant to prevent Rockenbrant from implicating defendant in the murder of Gray, evidence of Gray's disappearance and homicide was presented in defendant's trial for the Rockenbrant murder and was reported in the local newspaper.

Of the 19 counts of aggravated murder for which defendant was indicted, ³ a Marion County jury found defendant guilty of 16.

Following a penalty phase in which the jury unanimously answered "yes" to all four questions posed by former ORS 163.150(1)(b), ⁴ the trial court entered a judgment by which defendant was convicted of aggravated murder and sentenced to death.

II. PRE-TRIAL PHASE ASSIGNMENTS OF ERROR

A. Mitigation Investigator

Defendant assigns as error the trial court's denial of his request for the expenses of a special investigator and expert on mitigating evidence in death penalty cases. Defendant argues that lack of a mitigation expert denied his statutory rights and his state and federal constitutional rights. We first address his statutory right to an expert. State v. Kennedy, 295 Or. 260, 666 P.2d 1316 (1983).

Defendant was indigent at the time of his trial. Indigent defendants are entitled by statute to certain trial-related expenses:

"The person for whom counsel has been appointed is entitled to reasonable expenses for investigation, preparation and presentation of the case. The person or the counsel for the person may upon motion, which need not be disclosed to the district attorney prior to conclusion of the case, secure approval and authorization of payment of such expenses as the court finds are necessary and proper in the investigation, preparation and presentation of the case, including but not limited to * * * necessary costs associated with obtaining the attendance of witnesses for the defense, [and] expert witness fees * * *." ORS 135.055(3).

The appropriate inquiry is whether the trial court abused its discretion in determining what was necessary and proper in the circumstances of this case. State v. Rogers, 313 Or. 356, 366, 836 P.2d 1308 (1992).

Defendant describes a mitigation investigator as "an individual who specializes in compiling potentially mitigating information about the accused in a capital case," noting that "[i]t is a relatively new area of expertise, developed to aid capital defendants in presenting favorable evidence to the factfinder in the penalty phase of the trial." More than one-half the amount requested for expenses was for the investigator's travel to and from her out-of-state office. The affidavit did not explain why one of the local investigators assigned to assist defendant could not search out and present mitigating evidence nor why the peculiar expertise of the specialized investigator was necessary to the preparation or presentation of defendant's case. The trial court did approve defendant's other requests for investigators and expert witness fees, and its denial of this request was reasonable in light of the limited justification that defendant provided. The trial court did not abuse its discretion.

Defendant did not raise any objections based on alleged constitutional infirmity before or during trial, nor is an error of law apparent on the face of the record. ORAP 5.45(2); see State v. Brown, 310 Or. 347, 355-56, 800 P.2d 259 (1990)...