State v. Pinnell

• Decision Date: 19 March 1991
• Citation: 311 Or. 98,806 P.2d 110
• Parties: STATE of Oregon, Respondent, v. Mark Allen PINNELL, Appellant. TC 85-1106, C88-0026CR; SC S35371.
• Court: Oregon Supreme Court

Page 110

806 P.2d 110

311 Or. 98

STATE of Oregon, Respondent, v. Mark Allen PINNELL, Appellant.

TC 85-1106, C88-0026CR; SC S35371.

Supreme Court of Oregon.

Argued and Submitted March 6, 1990.

Reassigned May 7, 1990.

Decided Feb. 7, 1991.

Reconsideration Denied March 19, 1991.

[311 Or. 99] J. Bradford Shiley, Portland, argued the cause for appellant. With him on the brief was Des Connall, A Professional Corp., Portland.

Timothy A. Sylwester, 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 Brenda J. Peterson and Richard D. Wasserman, Asst. Attys. Gen., Salem.

Before PETERSON, C.J., and CARSON, JONES, ^* GILLETTE, VAN HOOMISSEN, FADELEY and UNIS, JJ.

UNIS, Justice.

This case is before this court on automatic and direct appeal from an aggravated murder conviction and sentence of death. ORS 163.150(1)(f) (amended by Or.Laws 1989, ch. 790, § 135b). A jury found defendant, Mark Pinnell, guilty on six counts of aggravated murder and two counts of felony murder involving a single victim. ¹ Following the findings by the jury during the penalty phase, the court entered a judgment sentencing defendant to death on the aggravated murder by torture conviction. Defendant seeks reversal of his conviction, asserting numerous assignments of error. For the reasons stated below, we affirm the judgment of conviction for aggravated murder, vacate the sentence of death, and remand this case to the circuit court for a new penalty phase proceeding.

THE FACTS

Because the jury found defendant guilty, we state the facts in the light most favorable to the state. State v. Douglas, 310 Or. 438, 440, 800 P.2d 288 (1990); State v. Brown, 310 Or. 347, 350, 800 P.2d 259 (1990).

In August 1985, defendant contacted Randy Brown in response to an advertisement placed by Brown in "Swing N Sway" Magazine, a publication through which persons meet for sexual purposes. Defendant and Brown met and engaged in homosexual relations. On September 9, 1985, defendant again contacted Brown and arranged to meet with him later that evening at Brown's residence. Defendant and his then constant companion, Donald Cornell, were driven by a friend to a location near Brown's house. The two men gained entry into the house and tied Brown's hands and feet together behind his back with electrical cord and other materials. Brown also was blindfolded and gagged. Defendant and Cornell repeatedly threatened Brown with a knife, and one of the men kicked Brown on the side of the head when Brown attempted to loosen the bindings. Over the ensuring three-hour period, defendant and Cornell ransacked the house, loaded the stolen property into Brown's pickup truck and left, leaving Brown tied and gagged on the bathroom floor. Brown eventually managed to summon help and suffered no permanent injuries.

Several days later, defendant obtained the use of a car from his ex-wife, Dixie Timmons. Shortly after midnight on September 19, 1985, defendant called John Ruffner, the victim in this case. Ruffner had an advertisement in the same issue of "Swing N Sway" in which Brown's advertisement appeared. Driving Timmons' car, with Cornell and an acquaintance named Velma Varzali as passengers, defendant went to the victim's apartment in Tualatin. Once there, defendant parked, left Cornell and Varzali in the car, and went to see the victim. About five minutes later, Cornell left the car. Several hours later, defendant and Cornell returned to the car, loaded it with property stolen from the victim's apartment, and drove back to their lodgings.

Ruffner's body was found the next day. His apartment had been ransacked. Ruffner's body lay on the bathroom floor, with hands and feet tied behind his back in part with electrical cords ripped from appliances in the apartment. He was gagged in part with a scarf, and a ligature was wrapped around his neck. Additionally, a large wad of tissue paper was stuffed into his mouth. The autopsy revealed that Ruffner died of asphyxiation as a result of either the tissue or the ligature. Ruffner's body also had cuts on his hands and a "blunt-force injury to the right side of his head."

On September 22, 1985, defendant and Cornell were arrested. Defendant eventually was indicted for six counts of aggravated murder and two counts of felony murder involving a single victim, Ruffner. Defendant was found guilty by the jury of all eight counts. At sentencing, all counts were merged into count number 1, aggravated murder by torture. ²

1. VOIR DIRE ASSIGNMENT OF ERROR

During voir dire, the state, over defendant's timely objections, questioned potential jurors individually regarding their willingness to consider in the penalty phase of the trial ³ whether defendant had a past criminal history in assessing the probability of defendant's future dangerousness, i.e., the probability that he would commit acts of violence in the future. With the exception of the incident involving Randy Brown, evidence concerning defendant's prior criminal history was neither proffered by the state nor admitted in the guilt phase of defendant's trial. Additional evidence of defendant's prior criminal history was, however, relevant to the jury's assessment of defendant's future dangerousness and, therefore, was properly admitted in the penalty phase of the trial. State v. Montez, 309 Or. 564, 610-12, 789 P.2d 1352 (1990); State v. Pratt, 309 Or. 205, 210, 785 P.2d 350 (1990); State v. Moen, 309 Or. 45, 70-76, 786 P.2d 111 (1990); State v. Wagner, 305 Or. 115, 178, 752 P.2d 1136 (1988), vacated and remanded on other grounds, 492 U.S. 914, 109 S.Ct. 3235, 106 L.Ed.2d 583 (1989). The prosecutor asked 10 of the 12 jurors who ultimately sat in both the guilt and penalty phases of the trial questions similar in content to that asked of Juror Colburn:

"Q. [Prosecutor:] One of the things in this case that you may be called upon to do is to determine whether this man, if he committed an aggravated murder, is likely to cause future violence. That kind of involves a future prediction. In doing that, would you be willing to consider whether he has been convicted of crimes in the past?" (Emphasis added.)

"A. [Juror Colburn:] I think that is an important consideration."

Defendant contends that those questions impermissibly suggested evidence of his bad character to the jury before its determination of his guilt on the charged offenses and that, because his past criminal history was not admissible in the guilt phase of his trial, the jury improperly might have inferred that he was guilty of the present charges because he is a bad person. Defendant argues, therefore, that the trial court erred when it allowed the questioning over his objections. Although we agree that the court erred in permitting the questions, the error does not require reversal in the circumstances of this case.

Although the issue presented by the assignment of error arises on voir dire, some discussion of pertinent evidence rules is helpful to an understanding of that issue. Evidence of other crimes, sometimes referred to as uncharged misconduct evidence, ⁴ is one form of evidence generally known as "bad-character evidence." The general rule is that the prosecutor is prohibited from introducing evidence of other crimes or bad acts by the accused unless the evidence is introduced for some relevant purpose other than to suggest that, because the accused is a person of criminal character, he or she is more likely to have committed the charged crime. OEC 404(2) and (3); McCormick on Evidence 557-58, § 190 (3d ed. 1984). ⁵ That general rule is often described as "the propensity rule," Lempert & Saltzberg, A Modern Approach to Evidence: Text, Problems, Transcripts and Cases 215-16 (2d ed 1982), or the rule that generally prohibits the "use of character as circumstantial evidence, or as it is sometimes called, character to prove conduct." Wright & Graham, 22 Federal Practice and Procedure 342, § 5232.

OEC 404(2), which sets forth the propensity rule, provides in part:

"Evidence of a person's character is not admissible for the purpose of proving that the person acted in conformity therewith on a particular occasion * * *."

The propensity rule also is restated in the first sentence of OEC 404(3) that precludes a prosecutor from introducing evidence of an accused's other crimes "to prove the [accused's bad] character * * * in order to show that the [accused] acted in conformity therewith."

Evidence first introduced by the prosecution that the accused has committed another crime or wrongful act that is offered as circumstantial evidence of conduct violates two rules: (1) the rule, OEC 404(2)(a), ⁶ that evidence of good character must be introduced by the accused before evidence of bad character can be used by the prosecution to prove conduct; and (2) the rule, OEC 405(1), ⁷ that character to prove conduct cannot be proved by specific instances of conduct.

Although other crimes evidence generally may not be used as circumstantial evidence to show how the accused acted on a particular occasion, such evidence may be admissible for various other purposes: first, situations in which character itself is "an essential element of a charge, claim or defense," OEC 404(1); second, the use of character evidence to impeach or support the credibility of a witness pursuant to OEC 607, ⁸ OEC 608 ⁹ and OEC 609 ¹⁰ (a use of character evidence expressly recognized in OEC 404(2)(c)); and third, the use of "other crimes evidence" to prove relevant facts other than conduct, such as "motive, opportunity, intent, preparation, plan, knowledge, identity, or absence of mistake or accident" (noncharacter uses of such evidence), OEC 404(3). ¹¹

Bad character evidence (such as other crimes by the accused) is excluded under the propensity rule, not because it is irrelevant, but because of the risk of unfair prejudice ¹² to the accused. The propensity rule's...