State v. Stevens

Decision Date07 February 1991
Citation806 P.2d 92,311 Or. 119
PartiesSTATE of Oregon, Respondent, v. Dallas Ray STEVENS, Appellant. CC CM88020368, SC S35888.
CourtOregon Supreme Court

Phil Studenberg, Klamath Falls, argued the cause for appellant. With him on appellant's brief was Myron Gitnes, Klamath Falls.

Janet A. Metcalf, Asst. Atty. Gen., Salem, argued the cause for respondent. With her on respondent's brief were Dave Frohnmayer, Atty. Gen., Virginia L. Linder, Sol. Gen., and Cynthia A. Carter and Brenda J. Peterson, Asst. Attys. Gen.

GRABER, Justice.

Defendant was convicted of three counts of aggravated murder and sentenced to death. 1 His convictions and sentence are before us on automatic and direct review. ORS 163.150(1)(f) (1987). Defendant also was convicted of, and sentenced for, several noncapital felonies, which he appealed to the Court of Appeals. The Court of Appeals certified that appeal to this court. We accepted the certification, ORS 19.210, and consolidated all issues for review. 2

Defendant asks us to reverse his convictions on all charges or, in the alternative on the aggravated murder counts, to vacate his sentence of death. We affirm his convictions of aggravated murder, vacate the sentence of death, and remand to the circuit court for a new penalty phase proceeding. We also affirm his convictions of kidnapping, rape, sexual abuse, and assault and remand to the circuit court to modify the sentences on three of the counts.

Because the jury found defendant guilty, we view the evidence in the light most favorable to the state. State v. Brown, 310 Or. 347, 350, 800 P.2d 259 (1990). On February 26, 1988, at about 3:30 p.m., defendant arrived at a friend's house in Creswell. Ms. Edwards was there with her four daughters, ages eight, five, four, and two. Edwards and defendant had known each other for 10 years; defendant was married to Edwards' estranged husband's sister.

Defendant gave Edwards a ride to the store to get a part for her car, which was running poorly. According to defendant, he agreed to give Edwards a ride in return for her help in locating drugs for him. Defendant testified that they stopped at a friend's house, where he injected methamphetamine and smoked a small amount of marijuana. Edwards denied that she was involved in looking for drugs and denied that they stopped en route. Edwards then retrieved her car from Creswell and asked defendant to follow her home in case she had car trouble. The eight-year-old and the five-year-old asked to ride with defendant, whom they knew, and the four-year-old joined her sisters. The youngest girl rode with her mother.

On the way home, Edwards stopped at a store for cigarettes. She testified that defendant, who was following her, appeared to stop or, at least, to slow down. When Edwards emerged from the store, however, defendant and the three girls were gone. She drove home and waited for defendant. When he did not arrive, she drove back along roads that she thought he might have taken, looking for his car. At 3 a.m., she called the police.

Lane County Deputy Sheriff House met Edwards at about 3:30 a.m. on February 27 at a gas station in Creswell. According to House, Edwards was extremely upset. Edwards said that she had not given defendant permission to take the girls and did not know where defendant lived.

A search for the missing girls followed. The eight-year-old and the four-year-old were found in defendant's house, at a dairy farm, shortly after 7 a.m. They reported physical and sexual abuse, which their condition confirmed; both girls were naked, and the younger of the two had bruises around her eyes. The older girl told the police that defendant had taken their clothes away.

The police located defendant elsewhere on the farm at 8:18 a.m. and, after they convinced him to drop a knife that he was holding, arrested him at 8:25 a.m. An officer advised defendant of his Miranda rights; he said that he understood them. When questioned about the missing five-year-old, defendant told inconsistent stories.

The search for the five-year-old resumed, throughout the farm. At 9:26 a.m., two officers went back into defendant's house. They found the girl's body in the attic at 9:30 a.m. After verifying that the girl was dead, the officers left the house. No one entered it again until after defendant gave his consent to a search, shortly after noon.

Defendant at first denied that he had done anything to the girls. After being confronted with the surviving girls' accusations and the discovery of the five-year-old's body, he admitted that he had killed the five-year-old by strangling her with a sock and stabbing her twice. He also said that he had used methamphetamine the night before and that he "was fuzzed up like crazy."

At trial, Dr. Buchanan, the doctor who treated the eight-year-old and the four-year-old at the hospital emergency room on the morning of February 27, 1988, was called as a witness. She testified that her examination revealed evidence of assault and sexual abuse that matched the older child's descriptions. She also found physical evidence that supported what the younger child said about abuse by defendant.

At the conclusion of the guilt phase of defendant's trial, he was convicted of all the crimes charged in the indictment: three counts of aggravated murder; four counts of first-degree kidnapping; two counts of first-degree sexual abuse; one count of first-degree rape; and two counts of second-degree assault. With respect to the aggravated murder convictions, the jury answered "yes" to the three statutory questions, ORS 163.150(1)(b) (1987), and defendant received a sentence of death. He also was sentenced to three 30-year prison terms, two 10-year terms, and one 5-year term on the noncapital felonies.

ASSIGNMENT OF ERROR NO. 1

In his first assignment of error, defendant argues that the trial court erred in denying his motion to allow him to ask questions of prospective jurors. Before voir dire, defense counsel filed a motion to permit defendant personally "to participate to a limited degree in the voir dire examination [by] ask[ing] a limited number of questions of each juror." Counsel asserted in argument that defendant wanted the opportunity to ask prospective jurors questions in order to "evaluate their responses" to him, such as willingness to have eye contact. Defense counsel also stated that "the jurors ought to have an opportunity to at least have some words with the man whose fate and possible life or death that they are going to be determining." The court denied the motion, concluding that defendant did not have a concurrent right, along with his counsel, to question jurors, and that it had discretion to allow or deny the motion.

Defendant first contends that Article I, section 11, of the Oregon Constitution guarantees him the right to perform the same functions as counsel. The key portion of that provision declares that, "[i]n all criminal prosecutions, the accused shall have the right * * * to be heard by himself and counsel." Defendant argues that the use of the conjunctive "and" means that he, as well as his counsel, has the right to question prospective jurors.

The state responds, and we agree, that Article I, section 11, grants two distinct, not overlapping, rights: the defendant's right to make a statement and to testify, and the defendant's right to be represented by counsel. In his concurrence in State v. Douglas, 292 Or. 516, 527-38, 641 P.2d 561 (1982), Justice Lent provided an exhaustive history of the evolution of the right to be heard. He concluded that it was a defendant's right to make a statement that early Americans, including the drafters of the Oregon Constitution, had in mind when they declared that the defendant has a right to be heard "by himself." 292 Or at 532, 641 P.2d 561. As a separate matter, constitutional provisions ensuring a defendant's right to be heard "by counsel" reflected colonial repudiation of the common-law rule that accused felons could not be represented by counsel. Faretta v. California, 422 U.S. 806, 827, 95 S.Ct. 2525, 2537, 45 L.Ed.2d 562 (1975).

Provisions identical or similar to Article I, section 11, are common in state constitutions. Faretta v. California, supra, 422 U.S. at 813 n. 10, 95 S.Ct. at 2530 n. 10. State courts interpreting those provisions consistently have rejected the argument that a criminal defendant has a constitutional right to perform the same functions as his or her counsel (sometimes called "hybrid representation"). See, e.g., State v. Gethers, 197 Conn. 369, 497 A.2d 408 (1985) (interpreting an identical provision in the Connecticut Constitution, the court cites many cases from other states with similar provisions that rejected the right to hybrid representation and the reading of "and" that defendant here advances); 2 W. LaFave & J. Israel, Criminal Procedure 51, § 11.5(f) (1984) (collecting federal and state cases).

In the alternative, defendant argues that the trial court abused its discretion in refusing to allow him to act as co-counsel during voir dire. Although a defendant has no constitutional right to hybrid representation, we agree with other courts' holdings (including those of the Oregon Court of Appeals) that trial courts have discretion to allow, as well as todeny, hybrid representation. Examples are State v. Reynolds, 43 Or.App. 619, 625-26, 603 P.2d 1223 (1979), aff'd on other grounds, 289 Or. 533, 614 P.2d 1158 (1980); State v. Easton, 35 Or.App. 603, 606, 582 P.2d 37, rev. den. 284 Or. 521 (1978); State v. Whitlow, 13 Or.App. 607, 611, 510 P.2d 1354 (1973); Bradberry v. State, 266 Ind. 530, 534, 364 N.E.2d 1183, 1187 (1977). Nonetheless, in this case, no abuse of discretion has been shown.

Defendant also contends that the denial of his motion violated Article I, section 20, of the Oregon Constitution, which states: "No law shall be passed granting to any citizen or...

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