State v. McDonnell

• Jurisdiction: Oregon
• Court: Oregon Supreme Court
• Writing for the Court: Durham
• Citation: State v. McDonnell, 343 Or 557, 176 P.3d 1236 (Or. 2007)
• Decision Date: 19 December 2007
• Docket Number: (CC J850004; SC SO49368).
• Parties: STATE of Oregon, Plaintiff, v. Michael Martin McDONNELL, Defendant.

176 P.3d 1236

343 Or. 557

STATE of Oregon, Plaintiff, v. Michael Martin McDONNELL, Defendant.

(CC J850004; SC SO49368).

Supreme Court of Oregon.

Argued and Submitted November 6, 2006.

Decided December 19, 2007.

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

Kathleen Cegla, Assistant Attorney General, Salem, argued the cause and filed the briefs for plaintiff. With her on the brief were Hardy Myers, Attorney General, Mary H. Williams, Solicitor General, and Jennifer S. Lloyd, Assistant Attorney General.

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

DURHAM, J.

Defendant appeals from a 2002 judgment imposing a sentence of death upon remand from this court. Defendant previously was convicted for aggravated murder. That judgment is subject to automatic and direct review in this court. ORS 138.012(1). For the reasons that follow, we affirm defendant's sentence of death.

We start with a brief outline of the procedural history of this case. In 1988, trial commenced in Douglas County Circuit Court on a charge that defendant had committed aggravated murder in killing Joey Keever. A jury found defendant guilty of aggravated murder and imposed a death sentence.¹ According to the record, the district attorney had informed defendant prior to trial that he was willing to enter into a plea agreement that effectively would have eliminated the possibility of a death sentence, but the district attorney would do so only if the victim's parents also agreed. Defendant was amenable to the district attorney's proposal, but the victim's parents were not. The district attorney chose to decline further plea negotiations and proceeded to trial, where, as noted, the jury sentenced defendant to death. On direct review in 1990, the state conceded that the district attorney, in violation of the statutes that authorized him to engage in plea negotiations, had impermissibly delegated the decision to enter into a plea agreement to the victim's parents. This court agreed, vacated the judgment, and remanded the case to the trial court for further proceedings. State v. McDonnell, 310 Or. 98, 104-07, 794 P.2d 780 (1990). On remand, defendant again was convicted of aggravated murder and sentenced to death. On direct review in 1992, this court affirmed defendant's conviction of aggravated murder, but vacated the sentence of death because, as the state conceded, the trial court had refused to give a required mitigating evidence jury instruction during the penalty-phase proceeding. State v. McDonnell, 313 Or. 478, 506, 837 P.2d 941 (1992). On remand, after another penalty-phase proceeding, the jury returned a verdict of death. On direct review in 1999 this court again vacated the sentence of death because the trial court had not allowed the jury to consider the option of sentencing defendant to life in prison without the possibility of parole under ORS 163.150(5)(a) (1993). State v. McDonnell, 329 Or. 375, 392 987 P.2d 486 (1999). In 2002, following another penalty-phase proceeding that commenced in 2000, the jury again imposed a sentence of death. That penalty-phase proceeding is the subject of this automatic and direct review.²

Defendant asserts more than 50 assignments of error on direct review. This opinion discusses only the following issues: (1) the participation of Judge Millikan in the 2002 penalty-phase proceeding; (2) defendant's right to a speedy trial; (3) the admission of transcripts of prior testimony; and (4) the admission of certain rebuttal. testimony given by the state's expert, Dr. Suckow.³

1. Participation of Judge Millikan

The first issue that we address has its origins in defendant's initial trial in 1988. Prior to that trial, defendant filed a motion under ORS 14.250 and ORS 14.260(1), which we quote below, to disqualify the Honorable Robert C. Millikan from presiding over that criminal proceeding.⁴ In the affidavit required by ORS 14.260, defendant declared that he believed in good faith that Judge Millikan was prejudiced against his interests because Judge Millikan formerly had worked with the deputy district attorney prosecuting defendant's case. Defendant also stated that he had "been informed of other facts and circumstances which concern[ed him] greatly," but did not elaborate on those other facts and circumstances. Another judge, the Honorable Joan G. Seitz, granted defendant's motion on August 25, 1987. Her order stated:

"THIS MATTER having come before the Court upon the motion of the defendant for the assignment of a trial judge other than the Honorable Robert C. Millikan to the trial of this matter; and sufficient cause having been shown for the allowance of the motion;

"IT IS, THEREFORE, ORDERED that a judge other than the Honorable Robert C. Millikan shall rule on all pretrial matters and trial matters in this case."

In 2000, the circuit court began to administer the penalty-phase proceeding that this court had ordered on direct review in 1999. After two other judges recused themselves, Judge Millikan received the assignment to preside over the penalty-phase trial. The record does not explain how Judge Millikan received that assignment. Neither party objected to Judge Millikan's participation in the 2002 penalty-phase proceeding.⁵ As noted, Judge Millikan presided over the proceeding and, as a consequence of the jury's verdict, entered judgment imposing a sentence of death.

On direct review, however, defendant asserts that, when Judge Seitz's order disqualified Judge Millikan from further participation in the case in 1987, Judge Millikan had no authority to act prospectively in any. judicial capacity in this case. Because Judge Millikan had no authority to act in this case, defendant argues, the resulting judgment imposing the death sentence is void. Defendant also asserts that the disqualification ruling became the law of the case and that no rule required him to raise that issue a second time to preserve the legal issue for appellate review.

The state offers several arguments in response. The state contends that it is not clear whether Judge Seitz's order disqualified Judge Millikan from presiding over defendant's 2002 penalty-phase proceeding. The state also asserts that, even if Judge Millikan was disqualified pursuant to the statute, the resulting judgment is not void per se, but instead is only voidable. A voidable act, the state asserts, may be invalidated by a reviewing court if the affected party properly objected at trial and properly raised the issue on appeal; in this case, defendant failed to object at trial. Additionally, the state argues that defendant's guilt-phase trial in 1988 and his penalty-phase trial 15 years later in 2002 were not the same "proceeding" within the meaning of ORS 14.250 and ORS 14.260 and, therefore, defendant was obligated to object to Judge Millikan's participation in the 2002 penalty-phase proceeding. Finally, the state contends that even if Judge Millikan's conduct in presiding over the 2002 penalty-phase proceeding was error, it was not plain error and, if it was plain error, the court should not exercise its discretion to review it.

Before turning to the meaning of the disqualification statutes, we first discuss the difference between a "void" judgment and a "voidable" judgment. Those are familiar legal concepts although the disqualification statutes do not refer to them. Black's Law Dictionary 861 (8th ed. 2004) defines a void judgment as

"[a] judgment that has no legal force or effect, the invalidity of which may be asserted by any party whose rights are affected at any time and any place, whether directly or collaterally. From its inception, avoid judgment continues to be absolutely null. It is incapable of being confirmed, ratified, or enforced in any manner or to any degree. One source of a void judgment is the lack of subject-matter jurisdiction."

In contrast, a voidable judgment is

"[a]judgment that, although seemingly valid, is defective in some material way; esp., a judgment that, although rendered by a court having jurisdiction, is irregular or erroneous."

Id. This court has stated that "[t]he distinction between void and voidable is often related to the distinction between direct and collateral attack, in that it is said that a void judgment is subject to collateral attack, while a voidable judgment is subject only to direct attack." Ketcham v. Selles, 304 Or. 529, 534, 748 P.2d 67 (1987) (emphasis added; citation omitted). For example, a procedural error results in a voidable judgment, while a jurisdictional error results in a void judgment. Id. Generally, a party must object at trial to procedural errors that the party requests be corrected on appeal, while jurisdictional errors are vulnerable to attack on appeal without an objection at trial. Id. Additionally, when a trial court has both subject-matter and personal jurisdiction, a judgment issued in excess of the court's authority is voidable, not void. See State ex rel Mix v. Newland, 277 Or. 191, 199 n. 5, 560 P.2d 255 (1977) (stating that where court's decree was in excess of its authority, that decree is "not void but merely voidable," so long as court had jurisdiction).

The distinction between a "void" and a "voidable" judgment takes on particular legal significance here. If, as defendant asserts, the judgment under review is void due to Judge Millikan's participation in the 2002 penalty-phase proceeding, he may attack the judgment notwithstanding his failure to object in 2002 to Judge Millikan's participation. On the other hand, if Judge Millikan's participation in the 2002 penalty-phase proceeding is a legal error that renders the resulting judgment only voidable, then defendant's failure to raise...