State v. Moen, C-21131

CourtSupreme Court of Oregon
Writing for the CourtJONES; FADELEY, J., filed a dissenting opinion in which LINDE; FADELEY; LINDE
Citation786 P.2d 111,309 Or. 45
Decision Date30 March 1990
Docket NumberC-21131
PartiesSTATE of Oregon, Respondent, v. Ronald Howard MOEN, Appellant. CC 86-; SC S33952.

Page 111

786 P.2d 111
309 Or. 45
STATE of Oregon, Respondent,
Ronald Howard MOEN, Appellant.
CC 86-C-21131; SC S33952.
Supreme Court of Oregon,
In Banc.
Argued and Submitted Feb. 1, 1989.
Decided Jan. 11, 1990.
Reconsideration Denied March 30, 1990.

Page 114

[309 Or. 46B] Timothy P. Alexander, of Timothy P. Alexander, P.C., Beaverton, argued the cause and filed the brief for appellant.

Rives Kistler, Asst. Atty. Gen., Salem, argued the cause for respondent. With him on the brief were Dave Frohnmayer, Atty. Gen., Virginia L. Linder, Sol. Gen., and Janet A. Klapstein, Michael C. Livingston, Brenda J. Peterson and Timothy A. Sylwester, Asst. Attys. Gen., Salem.

[309 Or. 47] JONES, Justice.

This is a criminal case in which the defendant seeks reversal of his conviction of the offense of aggravated murder. In the alternative, he requests that his death sentence be vacated.


Guilt Phase

The bodies of Hazel Chatfield and Judith Moen were found in Hazel Chatfield's residence on Friday, March 14, 1986, by a neighbor and two friends.

Dr. Karen Gunson, the medical examiner, testified that both victims died of gunshot wounds to the head. In addition to the fatal wound to the head, Judith Moen had been shot in the chest after death had occurred. Dr. Gunson also found some bruises and other minor injuries on Judith Moen. The time of death was estimated to be Thursday night or some time before then.

The police officers and crime laboratory technicians found that some areas of the house had been ransacked, but discounted theories of burglary because a portable television and stereo were not taken. Further, no footprints were found in soft soil outside what the officers otherwise might have treated as a suspected entry point. The spent bullets from what appeared to be the fatal gunshots were recovered and all three had eight lands and grooves with a right-hand twist and appeared to have been fired from a .38 caliber revolver.

The state's theory was that defendant had killed Judith Moen during a domestic quarrel and that he had killed Hazel Chatfield when she became involved in the dispute. Blood splatter evidence indicated that some injury had occurred to Judith Moen on her bed, that she had been upright and mobile at some time while bleeding, then was shot through the head, moved, and shot again through the chest. The second gunshot wound probably occurred one-half hour or longer after the first gunshot wound to Judith Moen. Other physical evidence indicated that Hazel Chatfield may have been holding a towel to one of Judith Moen's wounds when she was shot. All of the blood samples taken from the residence were matched to Judith Moen.

[309 Or. 48] The police investigation focused on defendant because he had been seen with Judith Moen on Wednesday evening, March 12, 1986, at approximately 9:30 to 10:00 at a local restaurant.

When questioned by police after the crime, defendant had a mark on his left hand and made a statement to the officers that a dog had bitten him. A dentist made casts of the victims' teeth and a veterinarian took tooth impressions of several dogs known to have been in contact with defendant during the relevant times. Those casts were submitted to Dr. Gary Bell, who was presented to the court as a specialist in forensic dentistry. Dr. Bell concluded that the tooth mark or teeth marks on defendant's hand were consistent with Hazel Chatfield's teeth and that neither Judith Moen nor any of the three dogs examined could have caused the mark.

Through a series of transactions, defendant had been in possession of a .38 caliber revolver known as an RG38s, and the state presented evidence that the bullets that killed the victims came from that weapon.

The remainder of the state's case focused on actions by defendant that the state characterized as suspicious, such as taking a raincoat to be cleaned and washing his hands with gasoline, and on statements made by defendant or by the victims.

Dr. Daniel Mulkey testified that he treated Hazel Chatfield from August 1985 up to and including visits on February 11 and

Page 115

March 11, 1986. During the latter two visits, Mrs. Chatfield complained of depression and despondency since her daughter and son-in-law (defendant) had moved into her home. Mrs. Chatfield appeared agitated, anxious, nervous, very tearful, and crying. Dr. Mulkey attempted to treat her for a potentially fatal lesion but, because of her situation at home, was unable to convince her that she needed treatment. Dr. Mulkey further testified that Mrs. Chatfield told him that she was upset about her daughter and son-in-law, that her son-in-law had been physically abusive to her daughter, and that "she felt he might kill them both." Dr. Mulkey diagnosed her condition as situational depression and recommended that defendant be removed from the home.

A former husband of Judith Moen testified that [309 Or. 49] defendant was pursuing a dissolution of his marriage with Judith and quoted defendant as saying, "I'm finally going to get rid of the bitch one way or the other."

Brad Barton, Judith Moen's son, described an incident in February 1986, while he was living at Hazel Chatfield's residence, during which defendant and Judith Moen became involved in an altercation. Barton described threats by defendant and a display of a shotgun in a threatening manner.

Finally, the state's key witness was Kenneth Scurlock, a fellow inmate in the Marion County jail when defendant was arrested. Scurlock claimed that defendant confessed to killing the two victims and described how the homicides had occurred. He further claimed that defendant said "he wasn't worried about anything because he had taken care of it all." Another inmate, Billy Minor, also testified that defendant was involved in a conversation about women and that defendant said "you just have to know how to take care of them" and made a gesture "like he had a gun."

The defense presented three expert witnesses to challenge the state's theory of the homicide. David Sugiyama, an experienced laboratory technician from Los Angeles, questioned when the blood was deposited at the residence. Sugiyama questioned several other conclusions reached by the state's expert on the blood shown in the photographs.

Lucian C. Haag, a firearms expert, questioned whether the .38 caliber shells found at the scene came from defendant's revolver.

Dr. Homer Campbell, a forensic odontologist (trained in the anatomy and growth of teeth), examined the photographs of the mark on defendant's hand and concluded that it was not a dog bite. He further found that he could not identify the mark, but he was convinced that it was definitely not a human bite and was probably not an animal bite.

In addition to the expert witnesses, defendant produced several witnesses with respect to the events of March 12, 1986, all of whom provided essentially negative testimony to the effect that they did not observe anything unusual occur on that date.

[309 Or. 50] The evidence then was closed and the jury retired and found defendant guilty of aggravated murder.

Penalty phase

A. The state's case

At the penalty phase, the state presented documents demonstrating prior criminal convictions of defendant that dated from 1959. The convictions included negligent homicide, forgery, robbery, petty larceny, assault, and possession of a firearm by a felon.

Mary Frances Kilgore and John C. Towle described the events surrounding defendant's 1958 negligent homicide conviction--while driving drunk, defendant killed another person.

Robert Franke described an incident on July 31, 1959, in which defendant threatened Franke with a gun and eventually fired the gun into the ceiling at Franke's home.

Alfanso Jaca and Inez Carter were both robbery victims in cases resulting in defendant's convictions in 1978. Both robberies involved display of a pistol or revolver and

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no harm to the storekeepers. One incident occurred at a liquor store; the other, at a grocery store.

John Butler was a detective for the Santa Clara, California, Police Department in 1968 and investigated yet another armed robbery of an individual named Jack Richards. He picked up defendant in Boise, Idaho, after his arrest there and returned him to San Jose. During the trip, defendant had a conversation with Butler about the Richards robbery and the gun used.

Duino Giordano recalled that he arrested defendant July 7, 1973, and found a gun in his boot. That event resulted in a conviction for possession of a firearm by a felon.

The state also offered transcripts of testimony by Richards and Jaca from two of defendant's trials for armed robbery.

B. Defendant's case

Defendant took the stand. With regard to March 12, 1986, defendant testified that he met Judith Moen and Hazel [309 Or. 51] Chatfield at Dr. Nadel's office and went back to Hazel's residence shortly after the visit. He then went to Paul White's and began a drinking binge. He left White's residence and met Judith Moen at the Blue Willow restaurant that evening. She was attempting to obtain drugs and he tried to prevent her from following that course of action. Defendant denied returning to Hazel Chatfield's residence after meeting with Judith at the Blue Willow restaurant and contended that he had not been back since that day. He concluded that Judith Moen's involvement with drug usage was the reason for her death. He testified that he had nothing to do with the homicides. The remainder of defendant's testimony was a general description of his relationship with Judith, and a description of his physical condition.


Defendant's first assignment of error is:

"The indictment should have been set aside because evidence was presented to the grand jury describing defendant's prior criminal convictions and attempting to prove through expert testimony that there is a probability that the defendant would commit criminal acts...

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