State v. Rogers

• Jurisdiction: Oregon
• Parties: STATE of Oregon, Respondent, v. Dayton Leroy ROGERS, Appellant. CC 88-355, 88-356, 88-357, 88-358, 88-359, 88-360; SC S36344.
• Citation: State v. Rogers, 836 P.2d 1308, 313 Or. 356 (Or. 1992)
• Court: Oregon Supreme Court
• Decision Date: 09 July 1992

Page 1308

836 P.2d 1308

313 Or. 356

STATE of Oregon, Respondent, v.Dayton Leroy ROGERS, Appellant.

CC 88-355, 88-356, 88-357, 88-358, 88-359, 88-360; SC S36344.

Supreme Court of Oregon In Banc.

Argued and Submitted Nov. 4, 1991.

Decided July 9, 1992.

Diane L. Alessi, Deputy Public Defender, Salem, argued the cause for appellant.With her on the brief was Sally L. Avera, Public Defender, Salem.

Brenda J. Peterson, Asst. Atty. Gen., Salem, argued the cause for respondent.With her on the brief were Dave Frohnmayer, Atty. Gen., Virginia L. Linder, Sol.Gen., and Ann Kelley, Diane S. Lefkow, and Janet A. Metcalf, Asst. Attys.Gen., Salem.

PETERSON, Justice.

Defendant appeals his convictions of 13 counts of aggravated murder and his sentence of death for causing the deaths of six women.Defendant challenges both the guilt and penalty phases of his trial.Because we conclude that no reversible error was committed in the guilt phase, we affirm defendant's convictions for aggravated murder.However, under this court's decision in State v. Wagner, 309 Or. 5, 786 P.2d 93, cert. den.498 U.S. 879, 111 S.Ct. 212, 112 L.Ed.2d 171(1990)(Wagner II ), defendant is entitled to a new penalty-phase proceeding.

SUMMARY OF FACTS

The jury found defendant guilty.We therefore set forth the facts in the light most favorable to the state.State v. Rose, 311 Or. 274, 276, 810 P.2d 839(1991).

On August 31, 1987, a hunter discovered a woman's body underneath some matted ferns in the Molalla Forest.He called the police and later took them to the body.Over the course of the following week, the bodies of six more women were found in the same general area.All the bodies were naked and in various stages of decomposition.Six of the seven women were identified; the seventh remains unidentified.

The State Medical Examiner performed autopsies and determined the cause of death of each of the women to be homicidal violence of an undetermined type.The medical examiner estimated that the bodies had been in the forest from one to three months.Because of the decomposition of the bodies, the medical examiner could not rule out strangulation as a cause of death and could not determine whether the various wounds to the victims had been inflicted before or after death.The medical examiner described the injuries to each identified victim as follows:

(1) Gyles: Six stab wounds to the lower back.The bone of one lower leg had been sawed through, and the foot had been sawed at ankle level.

(2) Mock: Deep stab wounds to the lower back region.Both feet had been sawed off at the ankle and were found underneath the body.There were multiple saw marks on the right thigh bone just above the knee.

(3) Cervantes: Abdomen split open with sharp object from below the breast bone to the pubic area.The right nipple appeared to have been cut, and the left nipple had been cut and removed.

(4) DeVore: The body was totally skeletonized.The upper back revealed stabbing injuries.

(5) Adams: There were stab wounds to the back, and the right foot had been severed at the ankle.The hands were bound by a dog collar with the arms above the head when the body was found.

(6) Hodges: The remains were scattered by animals.The legs below the knees were not found.The lower back revealed stabbing injuries.

At the site where the bodies were found, officers found various items.Approximately 38 miniature bottles of a particular brand of vodka, a cardboard sleeve that would hold 10 miniature vodka bottles, and 34 orange juice containers were found at the crime scene.A knife with human tissue on it was found near two of the bodies.Additionally, investigators found several items that had been tied into knots, including pantyhose, shoelaces, rope, and a cloth.They also found a dog collar, in addition to the one that was binding Adams' hands, and pieces of wire.

Defendant already was in police custody as a suspect in another killing when the seven bodies were found in the Molalla Forest.In that other killing, which had occurred in the early morning hours of August 7, 1987, the victim was Jennifer Smith, a prostitute.Defendant had picked up Smith in Portland and had driven with her to a 7-Eleven store and then to the parking lot of a Denny's restaurant on McLoughlin Boulevard in Clackamas County.Defendant asked that Smith allow him to tie her up so that he could massage her and masturbate.Smith removed her clothes.Defendant then tied her with shoelaces that he had in his pickup truck.Smith was tied so that she was on her knees facing the back of the seat with her hands and feet tied behind her against the dashboard.

At about 2:30 or 3 a.m. on the morning of August 7, several witnesses near the Denny's parking lot heard a woman screaming.One of the witnesses ran toward the source of the screams, but as he got closer, the screams stopped.The witness saw defendant standing between Smith's legs.Smith was naked and bleeding and she was having difficulty breathing.The witness yelled at defendant, and defendant ran from the parking lot, carrying a knife.Defendant ran around and behind a nearby building, where he dropped the knife.He then ran back to his pickup truck, which was parked about 45 feet from where Smith was lying, and drove away.Another Denny's customer followed defendant and obtained his license plate number.

Defendant drove to his small engine repair shop in Woodburn.There was blood all over the passenger side of his truck.He attempted to wash off the blood with a shop rag and sponge.He burned his blood-soaked clothing and a tennis shoe and some clothing belonging to Smith in a wood stove in the shop.The police arrived at defendant's shop at 5:35 a.m. Defendant's pickup truck was parked in front and its radiator was still warm.The police saw blood in front of the shop door.Defendant, who was inside the shop, was arrested.He had a strong odor of alcohol and told a detective that he had "bought some miniatures at the liquor store."Defendant had purchased a 10-pack of vodka miniatures--the same brand of vodka as the bottles found at the Molalla Forest crime scene--from the Woodburn liquor store the previous evening.

Smith bled to death from stab wounds to her chest.She also had stab wounds in her abdomen, in her breasts and nipples, and a complex v-shaped stab wound on her back.The stab wounds were consistent with the knife with which defendant fled and which was found behind the nearby building around which defendant ran.Smith had numerous defensive injuries to her hands and arms, and her wrists showed recent bruises that could have been caused by the knotted shoelaces that defendant had used to bind her.

Near the Denny's parking lot, the police recovered the knife that defendant had dropped while running.That knife was the same model as the knife later found at the Molalla Forest crime scene.The police found knotted shoelaces, one of Smith's tennis shoes, and most of Smith's clothing near where defendant's pickup truck had been parked.They also seized evidence from defendant's shop and pickup truck.From his shop, the police seized a hacksaw that could have caused the saw marks on the legs of some of the Molalla Forest victims.In the ashes of the shop's wood stove, the police found a shoe shank, eyelets, and swivels from Smith's other tennis shoe; shoe shanks from two other pairs of shoes; shoe eyes; shoe nails; burned and partially burned fabric; numerous brassiere parts; snap fasteners; decorative metal parts and clothing studs from women's clothing, including star-shaped studs later identified as studs from Adams' pants; buttons; numerous zipper parts; earring pieces; and belt buckles.The police also seized defendant's boots, which had blood stains on them.

In defendant's truck, the police found a bungi cord, a green pull tab from a juice container similar to the containers later found at the Molalla Forest crime scene, numerous blood stains, and several human hairs.Some of the blood stains found were made by type O blood of the same subtype as Smith's blood.Type O blood of the same subtype as defendant's blood--a subtype that is inconsistent with Smith's blood subtype--also was found in defendant's truck.Other blood stains were found in the truck on the passenger seat, seat back, and floor that were types O and A. Cervantes and Adams also had type O blood; Gyles' blood was type A.Of the human hairs found, several were macroscopically and microscopically similar to Mock's hair, two hairs were consistent with Cervantes' hair, and two hairs were consistent with DeVore's hair.The police also noted that the passenger side door panel, ceiling, and seat were cut.

While the state's investigation of the Molalla Forest killings was continuing, defendant was indicted, tried, and convicted of aggravated murder for causing the death of Jennifer Smith.During the guilt phase of that trial, the court refused to permit the introduction of evidence regarding the Molalla Forest victims.The state did not offer that evidence during the penalty phase of the Smith homicide trial.In the penalty phase, pursuant to ORS 163.150(1987), see note 9, post, the jury was asked three questions:

" Was the conduct of the defendant, Dayton Leroy Rogers, that caused the death of Jennifer Lisa Smith committed deliberately and with the reasonable expectation that the death of Jennifer Lisa Smith would result?"

" Is there a probability that the defendant, Dayton Leroy Rogers, would commit criminal acts of violence that would constitute a continuing threat to society?"

" Was the conduct of the defendant, Dayton Leroy Rogers, in killing the deceased, Jennifer Lisa Smith, unreasonable in response to the provocation, if any, by the deceased, Jennifer Lisa Smith?"

The jury answered "no" to the first two questions, and "yes" to the third.Thus, although the jury concluded that the killing was unreasonable in response to any provocation...