State v. Shaw

• Decision Date: 16 June 2005
• Citation: 338 Or. 586,113 P.3d 898
• Parties: STATE of Oregon, Appellant/Cross-Respondent, v. Sebastian Alexander SHAW, Respondent/Cross-Appellant.
• Court: Oregon Supreme Court

113 P.3d 898

338 Or. 586

STATE of Oregon, Appellant/Cross-Respondent, v. Sebastian Alexander SHAW, Respondent/Cross-Appellant.

(CC 010331742; SC S51416).

Supreme Court of Oregon, En Banc.

Argued and Submitted October 27, 2004.

Decided June 16, 2005.

Jonathan H. Fussner, Assistant Attorney General, Salem, argued the cause for appellant/cross-respondent. With him on the briefs were Hardy Myers, Attorney General, and Mary H. Williams, Solicitor General.

Richard L. Wolf, Portland, argued the cause and filed the brief for respondent/cross-appellant.

CARSON, C.J.

The first issue in this criminal case is whether the trial court erred by dismissing with prejudice an indictment charging defendant with aggravated murder after the state refused to proceed with the prosecution because it intended to appeal a pretrial exclusionary ruling that the trial court had made. If the trial court did err by dismissing the indictment with prejudice, then the second issue is whether the trial court erred by excluding the testimony of a certain state witness pursuant to OEC 403.¹

Shortly before defendant's aggravated murder trial was scheduled to begin, the state sought a pretrial ruling concerning the admissibility of evidence of other crimes by defendant that the state planned to offer during the guilt phase of defendant's trial to prove defendant's motive and intent. The trial court ruled that, under OEC 404(3),² the state was entitled to introduce evidence of defendant's other crimes for those noncharacter purposes. The trial court further ruled, however, that the state could not prove one of defendant's other crimes through the testimony of the surviving victim because that victim's personal testimony would be unfairly prejudicial under OEC 403.

The state moved for a continuance to appeal the trial court's OEC 403 ruling to this court. After concluding that its OEC 403 ruling was not appealable, the trial court denied the state's motion. The state then informed the trial court that, without the testimony of that other crime victim, it would not proceed with the prosecution of the case. Defendant moved to dismiss the indictment, and the trial court dismissed the indictment without prejudice. Subsequently, citing the state's "inexcusable neglect in its handling of this prosecution" and the prejudice to defendant that further delay of his trial would cause, the trial court granted defendant's motion for a dismissal with prejudice and entered a judgment of acquittal pursuant to ORS 136.130, set out post.

The state now appeals to this court the trial court's dismissal order and judgment of acquittal, as well as the trial court's underlying OEC 403 ruling. See ORS 138.060(2) (authorizing state appeals to this court from certain pretrial rulings in murder and aggravated murder prosecutions). Defendant challenges this court's jurisdiction to hear the state's appeal and, on cross-appeal, raises 15 assignments of error relating to other pretrial rulings that the trial court made. See ORS 138.040 (providing that defendant may cross-appeal when state appeals pursuant to ORS 138.060(2)(a)).

For the reasons explained below, we conclude that ORS 138.060(2) authorizes the state's appeal to this court. On the merits, we reverse the trial court's order dismissing the indictment and entering a judgment of acquittal, and also reverse the trial court's OEC 403 ruling. With the exception of his challenge to the relevance of the state's other crimes evidence, we decline to address the merits of the assignments of error that defendant raises on cross-appeal.

I. FACTS AND PROCEDURAL BACKGROUND

On March 9, 2001, the state charged defendant with one count of aggravated murder, ORS 163.095(2)(d),³ for the death of Rickbeil, on the theory that defendant intentionally and personally had killed Rickbeil in July 1991 during the course of a first-degree burglary. Rickbeil, a paraplegic suffering from cerebral palsy, had been stabbed to death in his apartment. During their investigation of Rickbeil's murder, the police discovered blood on a hallway wall and in the bathroom of Rickbeil's apartment, which they submitted to the Oregon State Police Forensic Laboratory (OSP laboratory) for analysis. The OSP laboratory determined that the blood had not come from Rickbeil and that it did not match any DNA profiles in the Oregon Convicted Offender Database. The police entered the DNA profile developed from that blood into the Oregon State Police database of DNA profiles for unsolved crimes. The police had no suspects for Rickbeil's murder, and the investigation stagnated.

On July 20, 1992, Ferguson and Rudiger were discovered stabbed to death in their home. Both Ferguson and Rudiger had their hands and feet bound together with electrical and telephone cords. Forensic tests conducted on the body of Ferguson suggested that she had been sexually assaulted, and the police took swabs from her body that tested positively for the presence of seminal fluid that did not belong to Rudiger. The police created a DNA profile from that seminal fluid and then entered that profile into the OSP unsolved crimes database.

On June 1, 1995, a man with a handgun forced his way into the apartment of Pliska. After sexually assaulting her, the intruder bound Pliska's hands and feet together with electrical and telephone cords, and attempted to smother her with a pillow. Pliska resisted and was able to make enough noise to cause her assailant to flee from her apartment. During their subsequent investigation of the attack on Pliska, the police took oral swabs from Pliska that tested positively for the presence of seminal fluid. The police created a DNA profile from that seminal fluid and then entered that profile into the OSP unsolved crimes database.

In February 1998, the police arrested defendant for the rape and attempted murder of Pliska. Pursuant to a search warrant, the police seized samples of defendant's blood, which they submitted to the OSP laboratory for analysis. The DNA analysis of defendant's blood matched the DNA profiles of the semen samples that the police had recovered from both Pliska and Ferguson.

In February 2000, defendant pleaded guilty to two counts of aggravated murder for the deaths of Ferguson and Rudiger, and to one count of attempted aggravated murder for the attack on Pliska. The court sentenced defendant to two concurrent life sentences without the possibility of parole for the aggravated murder counts and to a 240-month consecutive sentence for the attempted aggravated murder count.⁴ After his convictions, pursuant to ORS 137.076,⁵ the state took a buccal sample from defendant, which it used to create a DNA profile for defendant that it entered into the Oregon Convicted Offender Database.

In March 2001, defendant was indicted for one count of aggravated murder for the death of Rickbeil after a database search reportedly matched the DNA profile of defendant to the DNA profile of the blood taken from the scene of the Rickbeil murder. The state informed the trial court that it planned to seek a death sentence if defendant was convicted of that aggravated murder charge.

Defendant's trial date first was set for May 28, 2002, and then reset to September 5, 2002. On July 3, 2002, defendant moved for a continuance, because the parties had not completed discovery and because defense counsel had needed to hire a new investigator. After defendant waived applicable speedy trial requirements,⁶ the trial court granted defendant's motion and reset the trial date to August 18, 2003.

On March 19, 2003, defendant moved for another continuance after one of his lawyers learned that the lawyer's teenage son had been diagnosed with cancer. After defendant requested that the lawyer continue his representation and again waived speedy trial requirements, the trial court granted defendant's motion, setting the first omnibus hearing date to December 4, 2003, and resetting the trial date to April 5, 2004. The trial court subsequently reset defendant's trial date to April 23, 2004.

In December 2003 and February 2004, the trial court conducted several omnibus hearings to consider various pretrial motions that the parties had filed in the case. Although the state reported that it planned to introduce evidence of defendant's crimes against Ferguson, Rudiger, and Pliska if defendant's trial proceeded to a penalty phase, the state did not seek any pretrial ruling at those omnibus hearings as to whether evidence of defendant's other crimes also would be admissible during the guilt phase of defendant's aggravated murder trial.

On April 1, 2004, approximately three weeks before his trial was scheduled to begin, defendant filed another motion for a continuance. Also on April 1, 2004, the state filed a motion asking the trial court to conduct another omnibus hearing to determine the admissibility of certain photographs and writings by defendant. In addition to that motion, the state filed a notice of intent to offer evidence relating to defendant's crimes against Ferguson, Rudiger, and Pliska during the guilt phase, rather than just the penalty phase, of defendant's trial. The trial court held a hearing on the parties' motions the next day. At that hearing, defendant argued for a continuance upon the ground that one of his lawyers was unable to assist with his defense because that lawyer was occupied with another aggravated murder penalty trial and was not certain that he would be finished by the start of defendant's trial. Defendant also argued that a continuance would permit plea negotiations to continue. The trial court denied defendant's motion, explaining that the court already had summoned thousands of jurors for defendant's scheduled trial and that "the train has left the station." The trial court postponed argument on the state's motion after asking the state to prepare a more specific list of the evidence that it sought to introduce.

On April 15, 2004, approximately...