State v. Montez

• Decision Date: 03 April 1990
• Citation: 789 P.2d 1352,309 Or. 564
• Court: Oregon Supreme Court
• Parties: STATE of Oregon, Respondent, v. Marco Antonio MONTEZ, Appellant. TC C8708-34702; SC S35291.

Page 1352

789 P.2d 1352

309 Or. 564

STATE of Oregon, Respondent, v. Marco Antonio MONTEZ, Appellant.

TC C8708-34702; SC S35291.

Supreme Court of Oregon.

Argued and Submitted Sept. 5, 1989.

Decided April 3, 1990.

[309 Or. 566-B] Paul J. De Muniz, Salem, argued the cause, for appellant. With him on the briefs, were Susan G. Bischoff and Garrett, Seidemen, Hemann, Robertson & De Muniz, P.C., Salem.

Jonathan Fussner, Asst. Atty. Gen., Salem, argued the cause, for respondent. With him on the response, were Dave Frohnmayer, Atty. Gen., Virginia L. Linder, Sol. Gen., Ann Farmer Kelley and Brenda J Peterson, Asst. Attys. Gen., Salem.

[309 Or. 566-C] Before PETERSON, C.J., and LINDE, ^* CARSON, JONES, GILLETTE, VAN HOOMISSEN and FADELEY, JJ.

VAN HOOMISSEN, Judge.

This is an automatic and direct review of a judgment of conviction of aggravated murder and sentence of death. ORS 163.150(1)(f). Defendant seeks reversal of his conviction for aggravated murder. Alternatively, he requests this court to vacate his death sentence. We affirm defendant's conviction of aggravated murder. We reverse the trial court's judgment as to defendant's sentence and remand this case for resentencing. See State v. Wagner, 309 Or. 5, 786 P.2d 93 (1990); see also Penry v. Lynaugh, 492 U.S. 302, 109 S.Ct. 2934, 106 L.Ed.2d 256 (1989).

I. SUMMARY OF FACTS

On June 20, 1987, Candice Straub, accompanied by two men, rented a room at the Continental Motel in Portland. The next day, firefighters responding to a fire at the motel discovered Straub's nude and bound body on a bed in one of the motel's rooms. Her body had been doused with flammable liquid and set afire. It was determined later that she had been strangled to death.

A few weeks later, defendant Marco Montez told Annie Edmo, a woman with whom he had been living in Pocatello, Idaho, that he had helped get rid of the body of a woman in Portland after Tim Aikens, the co-defendant in this case, had strangled her. Edmo reported that statement to the Pocatello police. Defendant was arrested in Pocatello on July 12 on unrelated Idaho charges. The Pocatello police notified the Portland police of his arrest and of Edmo's report.

Portland Detective Goodale flew to Pocatello to interview defendant. On July 15, after introducing himself to defendant, Goodale handed defendant a constitutional rights (Miranda ) advice form, which defendant read. Goodale then read the form to defendant, stopping after each of the four individual Miranda rights, to ask defendant if he understood. Defendant responded that he did, and he initialed the form beside each right as Goodale read it to him. Defendant stated that he understood his rights and that he would speak to Goodale. He signed the advice of rights form. Defendant does not dispute that he was advised of, understood, and voluntarily waived his Miranda rights before talking to Goodale for the first time on July 15.

In response to Goodale's questions, defendant at first denied any involvement in Straub's murder. He stated that he had met Aikens in Portland and that they had worked together for a day at a cannery. Aikens had met Straub at the cannery, and she had accompanied Aikens and defendant to a drop-in center in Portland when they returned from work. After sleeping for a few hours, the three went to breakfast and to a second hand store before separating. Aikens and Straub went to the Continental Motel; and defendant went to a park, where he remained until Aikens contacted him later. At that time, Aikens told defendant that he had left Straub at the motel and that he wanted to show defendant something there. Defendant, however, declined to go to the motel. Aikens then said that he had a "problem," after which defendant and Aikens then made plans to leave town.

Goodale asked if Aikens had explained the nature of his "problem." Defendant replied, "I think I need a lawyer to talk about the rest of it so I don't get linked up." Goodale asked defendant if "he was telling us that he wanted an attorney and did not want to talk with us anymore." Defendant's reply was no. Goodale again advised defendant that he had the right to have a lawyer and to have his lawyer present at any time during the questioning. He asked defendant "if that's what he wanted?" Defendant replied that "that was not what he wanted." Goodale asked defendant if he was "still willing to talk with us?" According to Goodale, defendant replied, "I will talk to you without one."

In response to further questions by Goodale, defendant admitted that he had gone to the motel, where Aikens had showed him Straub's dead body in the bathtub. Aikens told defendant that Straub had refused to have sex with him, that he had hit her, and that she had fallen and hit her head. Defendant stated that he had then left the motel. Defendant stated that Aikens had later admitted setting the motel room afire. Defendant at first denied involvement in the fire, but he later admitted that he had helped Aikens move Straub's body from the bathtub to a bed and had participated in setting the motel room afire. Defendant admitted that it had been his plan to burn the room, but he still denied killing Straub or having sexual relations with her.

Defendant voluntarily submitted to polygraph tests on July 16 and 17. When the polygrapher told defendant that the tests indicated deception, defendant told the polygrapher that he did not want to talk to him anymore, and the polygrapher turned defendant back over to Goodale.

Goodale resumed his questioning of defendant. Defendant related more incriminating details about Straub's death, although he still insisted that Aikens alone had killed her. Defendant then returned to his cell, but shortly thereafter he asked a jailer to tell Goodale to return and "to bring his tape recorder."

When Goodale arrived, he again advised defendant of his Miranda rights. Defendant then admitted that he had participated in Straub's murder. He stated that he and Aikens had beaten, raped, and sodomized Straub and that when she had resisted, Aikens pushed his fist into her anus causing her to bleed profusely. They then tied Straub's arms and legs behind her back and gagged her and put her in the bathtub. Defendant stated that he and Aikens became concerned that Straub might report them to the police, and they decided to kill her. After looping a towel around Straub's neck, each man pulled one end until she was dead. They then placed her body on the bed, doused it with lighter fluid, set it afire, and left. Defendant admitted that they burned the motel room to destroy any evidence that could link them to the crime.

Defendant then asked if Goodale knew what would happen to defendant in Oregon. Goodale explained the Oregon homicide laws. Defendant then said that he was willing to plead guilty to murder but hoped that he would not be sentenced to death.

On August 28, Goodale again spoke with defendant, who stated that Straub had been conscious when he and Aikens carried her into the motel bathroom and placed her in the bathtub. He also admitted that he rather than Aikens had placed his fist in Straub's anus.

Indictment

Defendant was charged with three alternative counts of aggravated murder. ¹ The state's three theories of guilt were that defendant and Aikens had intentionally killed Straub: (Count I) to conceal their identities as perpetrators of the crimes of first degree kidnapping, first degree rape, first degree sodomy, first degree sexual abuse, and fourth degree assault; (Count II) in the course of intentionally torturing her; and (Count III) in the course of and in the furtherance of first degree kidnapping, first degree rape, first degree sodomy, and first degree sexual abuse.

During his opening statement, defendant's counsel told the jury that "Mr. Montez does not deny that he participated and that he aided in the strangulation death of Candice Straub," and that "There is no doubt that Mr. Montez participated in, with Timothy Aikens, in strangling Candy Straub." Defendant's counsel explained that he would try to persuade the jury that there was doubt that defendant had committed rape, sodomy, kidnapping, sexual abuse or assault, and that there was no evidence that Straub had been "tortured." Counsel concluded, "[w]e will submit to you that Mr. Montez is in fact guilty of * * * Murder. He is not guilty of Aggravated Murder, despite what he said himself, he is not guilty of that particular offense. * * * [W]hen we get done with this case and we've discussed these matters of sex and violence and rape and sodomy and all those other unspeakable kinds of things, you'll find Mr. Montez guilty of Murder. He's not guilty of Aggravated Murder."

During closing argument, defendant's counsel again told the jury that defendant did not deny that Straub was strangled to death, but he argued that defendant's act had been the result of "a drunken mistake." He argued that defendant had wanted to come back to Oregon from Idaho to plead guilty to aggravated murder and to take the consequence for what he had done. He reminded the jury that defendant had denied raping Straub and that there was no independent evidence of sodomy, and he argued that the state had failed to prove that Straub had been "tortured." Counsel's opening statement and closing argument fairly can be characterized as asking the jury to find defendant guilty only of murder, but not guilty of "aggravated" murder. Defendant did not testify at his trial.

Defendant was convicted on all three counts of aggravated murder in the guilt phase of his trial. In the penalty phase the jury affirmatively answered two of the questions posed by ORS 163.150(1)(b)(A) and (B). ² Thereupon, the trial court entered a sentence of death pursuant to ORS 163.150(1)(f) [former ORS 163.150(1)(e) ].

II. ASSIGNMENTS OF ERROR

A. Guilt Phase

Defendant makes fourteen assignments of error relating to the guilt phase of his trial. We will discuss each assignment...