State v. Moore

• Citation: 324 Or. 396,927 P.2d 1073
• Decision Date: 06 December 1996
• Docket Number: C-20781
• Parties: STATE of Oregon, Respondent, v. Jerry Lee MOORE, a/k/a Harry Charles Moore, Appellant. CC 92; SC S40506.
• Court: Supreme Court of Oregon

Page 1073

927 P.2d 1073

324 Or. 396

STATE of Oregon, Respondent, v. Jerry Lee MOORE, a/k/a Harry Charles Moore, Appellant.

CC 92C-20781; SC S40506.

Supreme Court of Oregon.

Argued and Submitted Sept. 5, 1995.

Decided Dec. 6, 1996.

David E. Groom, Deputy Public Defender, Salem, argued the cause for appellant. With him on the briefs was Sally L. Avera, Public Defender.

Robert B. Rocklin, Assistant Attorney General, Salem, argued the cause for respondent. With him on the briefs were Theodore L. Kulongoski, Attorney General, Virginia L. Linder, Solicitor General, and Kristin N. Preston, Assistant Attorney General.

Before CARSON, C.J., and GILLETTE, VAN HOOMISSEN, FADELEY, GRABER and DURHAM, JJ. ^*

CARSON, Chief Judge.

This case comes before this court upon automatic and direct review of a sentence of death, following defendant's convictions for three counts of aggravated murder and two counts of murder, involving the deaths of two persons, and two additional felony convictions. Defendant seeks reversal of all seven convictions or, in the alternative, asks us to vacate his sentence of death and remand this case for resentencing. For the reasons stated below, we affirm defendant's convictions and the sentence of death.

I. SUMMARY OF FACTS

Because the jury found defendant guilty of all the crimes charged, we view the evidence presented at trial in the light most favorable to the state. See State v. Charboneau, 323 Or. 38, 40-41, 913 P.2d 308 (1996) (stating principle).

Defendant was convicted of murdering his mother-in-law and his father-in-law. A brief description of the family relationships involved in this case is helpful in order to understand the underlying facts. Defendant was married to Cynthia Moore ("defendant's wife"), who also was defendant's half-niece. Barbara Cunningham and Thomas Lauri ("defendant's mother-in-law" and "defendant's father-in-law," respectively, or "defendant's in-laws"), the two murder victims, were the parents of defendant's wife; defendant's mother-in-law also was defendant's half-sister. Irene Moore ("defendant's mother") was the mother of defendant and of defendant's mother-in-law. Defendant and his wife had a daughter ("defendant's daughter"), who was about seven months old when defendant committed the crimes of which he was convicted.

In the spring of 1992, defendant and his wife, daughter, and father-in-law all lived in the same house in Salem. Defendant's mother-in-law lived with defendant's mother, elsewhere in Salem. During May 1992, the relationship between defendant and his in-laws had become strained, because defendant's in-laws had questioned the validity of defendant's marriage to their daughter. At around that same time, defendant's wife began to think about leaving defendant. She did not tell defendant about her plans.

Defendant began to suspect that his wife was planning to leave him and that she would take their daughter with her. On Memorial Day weekend, defendant threatened his wife with a gun and said that he would kill her or anyone else who tried to take their daughter away from him. Several days later, defendant's wife called the police, who arrested defendant. After being released from jail, defendant removed some personal items, including the gun later used to shoot his in-laws, from the house that he shared with his wife, daughter, and father-in-law, and moved into his mother's house. Defendant's mother-in-law then moved out of that house and into the house shared by defendant's wife, daughter, and father-in-law.

On June 5, 1992, defendant drove to the main post office in Salem, knowing that his father-in-law had gone there to check his mailbox. Defendant waited for his father-in-law to come out of the post office and watched him get into his truck in the parking lot. Defendant then walked over to the truck and shot and killed his father-in-law. Defendant next went to the house that his wife and daughter were sharing with his in-laws. Defendant kicked in the front door and shot his mother-in-law several times, killing her in front of his wife. Defendant then took his wife and daughter outside the house, forced them into his vehicle, and left Salem.

Defendant drove back to Salem later that night with his wife and daughter. He went to his mother's house, which was being searched by police, and was arrested at that time. Defendant later told the investigating detective that he had killed his in-laws in order to stop their interference with his relationships with his wife and daughter.

The state charged defendant with two counts of aggravated murder, ORS 163.095(1)(d) (counts one and two of the indictment); one count of aggravated murder, ORS 163.095(2)(d) (count three) ¹; two counts of murder, ORS 163.115(1)(a) (counts four and five) ²; one count of burglary in the first degree (count six) ³; and one count of kidnapping in the second degree (count seven). ⁴ A jury convicted defendant of all seven counts. Following the guilt phase of defendant's trial, the trial court merged the aggravated murder counts with the murder and burglary counts. After the jury answered the four statutory penalty-phase questions in the affirmative, ORS 163.150(1)(b), the court sentenced defendant to death. ORS 163.150(1)(f).

Defendant raises 12 assignments of error upon direct review, six relating to the guilt phase of his trial and six relating to the penalty phase. We discuss each assignment of error below.

II. GUILT PHASE

A. SUPPRESSION OF DEFENDANT'S STATEMENTS

Defendant first assigns error to the trial court's denial of parts of defendant's pre-trial omnibus motion, in which defendant moved to suppress all statements that he had made, after his arrest, to two police detectives and a state-hired psychologist. Defendant makes three arguments, which we address in turn. We conclude that none of those arguments is well taken.

The relevant chronology is as follows. Defendant was arrested immediately upon returning to his mother's house shortly before midnight on June 5, 1992. After one detective, Peterson, told defendant that he was under arrest, defendant said, "I know, but you may want this first," and handed his gun to Peterson. After Peterson handcuffed defendant, another detective, Stoelk, moved defendant into a bedroom. Stoelk then read defendant Miranda warnings, and defendant orally acknowledged those warnings and agreed to speak with Stoelk. Following a brief interview, Stoelk drove defendant to the police station. Shortly after midnight on June 6, 1992, Stoelk again read defendant Miranda warnings. Defendant orally consented to another interview and signed an acknowledgment of advice-of-rights card.

Following that interview, Dr. Cochran, a psychologist hired by the state, examined defendant at the police station, between about 1:00 a.m. and 6:00 a.m. on June 6, 1992. At the outset of that examination, Cochran also read defendant Miranda warnings and further advised defendant that he, Cochran, was a representative of the state and that no physician-patient privilege attached to the examination. Defendant acknowledged his rights and signed an acknowledgment of advice-of-rights form, which included a statement that no privilege attached. During both interviews with Stoelk and also during Cochran's examination, defendant confessed that he had murdered his in-laws and made other incriminating statements. Defendant also had made some unsolicited incriminating statements to Stoelk during the drive to the police station.

Defendant first challenges the admission of all the statements mentioned above, because he had not spoken to a lawyer before making them. Defendant concedes that, before his interviews with Stoelk and his examination by Cochran, he had received and acknowledged Miranda warnings. He asserts, however, that, "[i]n this situation, a defendant who is suspected of a crime of this nature should be given the absolute right to talk to an attorney prior to the time any questioning takes place."

No authority exists for that contention, and it does not merit extensive discussion here. It is clear from the record that both Stoelk and Cochran complied with the requirements of Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966). We reject defendant's contention that, because he was under investigation for a double homicide, the state should not have questioned him under any circumstances until he had spoken with a lawyer.

Defendant next argues that his statements were not voluntary. When reviewing the voluntariness of a defendant's statements to police or other representatives of the state, "we will not disturb the trial court's findings of historical fact if evidence supports them." State v. Stevens, 311 Or. 119, 135, 806 P.2d 92 (1991) (Stevens I ), on remand 319 Or. 573, 879 P.2d 162 (1994). In this case, the trial court made these findings when it denied defendant's motion to suppress:

" * * * Dr. Cochran administered appropriate Miranda rights to the defendant prior to the interview. Dr. Cochran also advised the defendant that he was present at the request of the Marion County District Attorney and that there would be no confidentiality about the subject matter of the interview, and that the results could be used against him in court. The defendant freely, knowingly, and voluntarily waived those rights before speaking with Dr. Cochran. * * *

" * * * The defendant volunteered the initial statement about the gun to Detective Peterson. Thereafter the police administered 2 different sets of Miranda warnings to the defendant prior to questioning the defendant. The police made no threats or promises to the defendant during the questioning. The defendant freely, knowingly, and voluntarily waived those rights and agreed to speak with the police."

After reviewing the record, we conclude that the evidence supports the trial court's findings. Those findings, in turn, support the trial court's conclusion that defendant's statements...