State v. Serrano

• Citation: 324 P.3d 1274,355 Or. 172
• Decision Date: 17 April 2014
• Docket Number: (C063227CR; SC S058390).
• Parties: STATE of Oregon, Respondent, v. Ricardo SERRANO, Appellant.
• Court: Supreme Court of Oregon

355 Or. 172
324 P.3d 1274

STATE of Oregon, Respondent,
v.
Ricardo SERRANO, Appellant.

(C063227CR; SC S058390).

Supreme Court of Oregon,
En Banc.

Argued and submitted Sept. 20, 2013.
Decided April 17, 2014.

[324 P.3d 1277]

Meredith Allen, Senior Deputy Public Defender, argued the cause for appellant. With her on the briefs was Peter Gartlan, Chief Defender, Office of Public Defense Services, Salem.

Susan G. Howe, Assistant Attorney General, argued the cause for respondent. With her on the brief were Ellen F. Rosenblum, Attorney General, Anna M. Joyce, Solicitor General, and Timothy A. Sylwester and Andrew M. Lavin, Assistant Attorneys General, Salem.

BREWER, J.

This case is before this court on automatic and direct review of defendant's judgment of conviction and sentence of death for multiple counts of aggravated murder. ORS 163.095; ORS 138.012. For the reasons set out below, we affirm the judgment of conviction and sentence of death.

I. FACTS

Because the jury found defendant guilty, we set out the facts in the light most favorable to the state. State v. Longo, 341 Or. 580, 582, 148 P.3d 892 (2006). Defendant was married to Melinda. After she discovered that defendant was having an affair with another woman, Melinda decided to end their marriage. Around that time, Melinda became romantically involved with a coworker, Nguyen, who lived with Melody Dang and her two sons, Steven and Jimmy. Melody was aware of Nguyen's relationship with Melinda.

During their relationship, Nguyen taught Melinda various phrases in Vietnamese, which Melinda wrote down in a check register. Melinda kept the check register in her vehicle, to which defendant did not have a key. In July 2006, Melinda discovered that she was pregnant. She believed that Nguyen was the father. In September, Melinda left defendant and moved into her sister's apartment. When that living arrangement failed to work out, Melinda moved back in with defendant.

As those events were unfolding, defendant became acquainted with two sisters, Madriz–Mendoza and Miranda–Mendoza. Miranda–Mendoza worked with Melinda and Nguyen, but she did not know that Melinda was married to defendant. Defendant asked Miranda–Mendoza questions about her coworkers, including what they looked like, whether any of the women were pregnant, and whether she knew a curly-haired man named “Mike.” On one occasion, as Melinda was leaving work, she stopped to talk with a group of fellow workers—including Nguyen, who was the only person in the group with curly hair. Defendant drove up and angrily told Melinda that she was disrespecting him by talking to the group.

On the evening of November 2, 2006, Melody, Steven, and Jimmy were at Nguyen's house. Nguyen was at work, as was Melinda. Melody and Nguyen had a phone conversation at about 8:30 p.m. Melody sometimes visited Vietnamese-language internet

[324 P.3d 1278]

chat-rooms and often had phone conversations with men whom she had met in those chat-rooms. At about 9:00 p.m., Melody called Tran, a Florida resident whom she had met online. As they were talking, Tran heard dogs barking in the background and heard Melody yell, “Oh my God, Oh my God.” Then the call was disconnected. When Tran called back, there was no answer; he then sent text messages to Melody, but there was no reply.

The next morning, Nguyen returned home from work. The lights were on, and his dogs were barking. Nguyen entered the house through the garage and saw that the house was messy. Then he saw Melody's body in the hallway. Steven was lying next to her. Their bodies were cold. Nguyen then called 9–1–1. The police arrived within minutes. They observed Melody and Steven lying in the hallway, and they found Jimmy inside a bathroom off the hallway. All three victims had been shot to death.

Three additional noteworthy discoveries were made at the scene. First, when he looked around the living room, Nguyen noticed that a laptop computer was missing. Second, the investigating officers recovered two spent .380 caliber shell casings near the victims' bodies, along with a live .380 caliber cartridge. Third, there was blood on the hallway floor where the victims were found. Using a chemical test, the officers found shoe impressions in the blood.

Melinda returned to defendant's house that same morning after her work shift. Defendant was not home and his vehicle was gone. Later that same day, Melinda saw defendant's vehicle parked down the street. Defendant returned home at 4:00 p.m. He told Melinda that he had not gone to work that day, but he did not appear to be ill.

On November 27, police officers searched defendant's brother's house. The officers found two handguns, one a .380 caliber pistol. They also found several magazines for a .380 caliber pistol, along with boxes of .380–caliber ammunition. The .380 pistol was later tested by an Oregon State Police firearms examiner. It appeared to have been recently cleaned. The examiner test-fired the pistol and compared the markings on the test bullets to the markings on the bullets recovered from the crime scene. The markings matched. The examiner concluded that the pistol seized from defendant's brother's house had fired the bullets found at the crime scene.

On November 28, police officers executed a search warrant at defendant's residence. Among other items, they found defendant's shoes and, in the back of his vehicle, a partially-full bottle of bleach. The shoes were later tested for blood. None was found, but the shoes appeared to have been recently washed. The officers also found Melinda's check register with the Vietnamese phrases written inside, and they found a key that fit the ignition of Melinda's vehicle. Defendant was arrested the same day. Later, prior to trial, the state compared the shoe impressions found at the crime scene to the tread of defendant's shoes. The impressions matched defendant's right shoe.

Melinda moved out of defendant's house after the search and his arrest. From time to time, she returned to retrieve belongings but, in the meantime, she left the house unlocked. On January 3, 2007, an employee of a property management company cleaned the garage. Underneath a couch, the cleaner found a laptop computer wrapped in a towel inside a garbage bag. When the computer was shown to him, Nguyen recognized that it was similar to the computer that was missing from his living room.

Defendant was indicted on ten counts of aggravated murder. In Counts 1, 2, and 7, which charged defendant with the murder of Melody Dang, the indictment alleged that defendant had murdered her in the course of the same criminal episode that resulted in the death of Steven (count 1); that he had murdered her in the course of the same criminal episode that resulted in the death of Jimmy (count 2); and that he had murdered her in the course of and in furtherance of his commission of first-degree burglary (count

[324 P.3d 1279]

7), ORS 163.095(2)(d); ORS 163.115(1)(b). The counts pertaining to Steven Dang (counts 3, 4, and 8) and Jimmy Dang (counts 5, 6, 9, and 10) were charged in the same manner, except for count 10, which alleged that defendant had murdered Jimmy, who was a person under the age of 14. ORS 163.095(1)(f). A jury found defendant guilty on all counts. In a separate proceeding, the jury answered the relevant death penalty questions, ORS 163.150, in the affirmative. The trial court merged the convictions into three and sentenced defendant to death.

Defendant now raises 30 assignments of error. We have examined each of those assignments of error, and we reject each one. Eight of the assignments merit discussion, and we now turn to them.

II. GUILT PHASE A. Motions for Judgments of Acquittal on Felony Aggravated Murder Counts

As noted, in counts 7, 8, and 9, defendant was convicted of three counts of aggravated felony-murder. ORS 163.095(2)(d); ORS 163.115(1)(b). The indictment alleged as to each of those three counts that the underlying felony was first-degree burglary. A person commits first-degree burglary when he or she “enters or remains unlawfully” in a dwelling “with the intent to commit a crime therein.” SeeORS 164.225; ORS 164.215. The indictment did not specifically identify the underlying crime that defendant intended to commit when he entered the Nguyen/Dang residence. However, the trial court instructed the jury that, to find that defendant had committed first-degree burglary, it must find beyond a reasonable doubt that he had entered the residence with the intent to commit theft therein.

In his third assignment of error, defendant asserts that the trial court erred in denying his motions for judgments of acquittal on the three aggravated felony-murder counts. In support of those motions, defendant had argued to the trial court only that the identified counts required proof that he was “personally involved” in the murders. Before this court, however, defendant does not renew that argument. Instead, defendant asserts that the trial court erred in denying the motions because the state “failed to prove a sufficient causal connection between the homicides and the burglary-theft” of the laptop computer. In short, by focusing on the causal relationship between the homicides and the burglary based on theft of the computer, defendant's argument on review has a fundamentally different focus from his argument at trial. Because the trial court was never presented with the argument for acquittal that defendant advances on review, defendant's third assignment of error is unpreserved. See State v. Walker, 350 Or. 540, 548, 258 P.3d 1228 (2011) (preservation rule exists, in part, to ensure that the trial court had an opportunity to avoid ruling in error). Defendant concedes as much, but he urges this court to review his third assignment as plain error.

Defendant notes that this court previously has held that, to prove aggravated felony-murder under ORS 163.095(2)(d) and ORS 163.115(1)(b), the state must establish a “causal connection” between...