State v. Terry

• Citation: 333 Or. 163,37 P.3d 157
• Parties: STATE of Oregon, Respondent, v. Karl Anthony TERRY, Appellant.
• Decision Date: 28 December 2001
• Court: Supreme Court of Oregon

37 P.3d 157

333 Or. 163

STATE of Oregon, Respondent, v. Karl Anthony TERRY, Appellant.

(CC 94-1337; SC S42818)

Supreme Court of Oregon.

Argued and Submitted September 6, 2001.

Decided December 28, 2001.

Eric Johansen, Deputy Public Defender, Salem, argued the cause for appellant. With him on the briefs were David. E. Groom, State Public Defender, and Ingrid MacFarlane, Deputy Public Defender.

Robert B. Rocklin, Assistant Attorney General, Salem, argued the cause for respondent. With him on the brief were Hardy Myers, Attorney General, Michael D. Reynolds, Solicitor General, and Kathleen Cegla and Doug M. Petrina, Assistant Attorneys General.

Before CARSON, Chief Justice, and GILLETTE, DURHAM, LEESON, RIGGS, and De MUNIZ, Justices.¹

De MUNIZ, J.

This case is before us on automatic review of defendant's convictions for two counts of aggravated murder and sentences of death. See State v. Lotches, 331 Or. 455, 457 n. 1, 17 P.3d 1045 (2000)

(explaining that judgment of conviction and sentence of death now subject to automatic and direct review in this court under ORS 138.012(1)). Defendant challenges the pretrial, guilt, and penalty phases of his trial in 22 assignments of error. For the reasons set out below, we reject each of defendant's assignments of error and affirm the convictions for aggravated murder and sentences of death.

I. FACTS

Because the jury found defendant guilty of the crimes charged, we view the evidence presented at trial in the light most favorable to the state. State v. Thompson, 328 Or. 248, 250, 971 P.2d 879 (1999).

On August 6, 1994, Jeffrey Brown (Jeff) invited defendant to celebrate the birthday of Jeff's brother Dale Brown (Dale). Defendant and Jeff had spent a lot of time together. According to defendant's writings, they belonged to an organization that defendant called the "Order of the Black Dove." The creed of the Order of the Black Dove, as reflected in defendant's journals, celebrated violence and other anti-social behavior.

Defendant accepted the invitation and met Jeff and Dale at approximately 2:30 or 3:00 p.m. that day. The three of them drank beer together and, eventually, decided to go camping on the Willamette River. The brothers collected their gear, and Jeff brought a samurai or ninja knife that he owned. The group obtained cash from an ATM machine and purchased a six-pack of beer. At the river, they drank more beer and argued about where to camp. Witnesses recalled seeing defendant with Jeff and Dale at the river before 9:00 p.m., and also recalled that defendant was wearing a black leather jacket. Defendant was seen alone at the river at about 9:15 p.m.

The next day, Bennie Garry and his two sons went fishing at the Jefferson Milwaukee boat landing. The younger son tired of fishing and decided to play elsewhere. A few minutes later, he returned and reported that there was a dead man nearby. The older son investigated and returned to tell his father that the man had a hole in his neck. Garry then found two bodies, one that appeared to be sleeping on the ground and one that was in a sleeping bag. He notified police. The police concluded that the victims had been killed where they were found. Although the police surveyed the area, they did not find a weapon. The victims were identified as Jeff and Dale.

Jeff had lived in an apartment above a restaurant where he worked. The owner of the restaurant let the police into the apartment, where they made a brief, preliminary search. The owner noticed that Jeff's keys were on the counter and that the deadbolt, usually locked, was unlocked. After notifying the parents and obtaining permission, the police searched Jeff's apartment more thoroughly and discovered defendant's black motorcycle jacket inside a backpack. A witness had seen defendant leaving Jeff's apartment on the night of the murders at about 9:30 p.m. Defendant was not wearing a jacket at that time.

On August 8, 1994, the police again went to Jeff's apartment. While searching the apartment, Detective Corson noticed that the telephone had a redial function. He pressed the button. The person who answered the call identified himself as "Karl," i.e., defendant. Defendant acknowledged that he was a friend of Jeff's. Corson asked if he could speak with defendant in person at his apartment in Portland. Defendant agreed.

When Corson arrived at defendant's apartment, defendant gave him a paper sack containing a knife, saying that he was aware that the police were looking for knives. According to defendant, the knife had belonged to Jeff. Defendant also handed Corson a written statement, and agreed to go to a Portland police station to give an interview. At the interview, Corson advised defendant of his Miranda rights and recorded defendant's oral statement. In that statement, defendant indicated that he had left Dale and Jeff at the river at about 8:00 p.m. He denied that he had fought with them. Corson and Detective Kidd then took defendant home but, on the way, stopped for some cigarettes. At his apartment, defendant invited the police inside and permitted them to look around. The officers explained to defendant that they had no right to look inside his apartment without a warrant and that anything incriminating that they might find could be used against him. Defendant was cooperative and signed a consent-to-search form. The police searched the apartment but did not seize anything.

On August 9, 1994, Kidd telephoned defendant and obtained defendant's consent to take a polygraph examination. The next day, when Kidd arrived at defendant's apartment, defendant refused to submit to the polygraph examination and walked away, stating that he had given the police all the information that he had.

On August 19, 1994, the police obtained a search warrant for defendant's apartment. Four officers—Corson, Kidd, Trooper Nguyen, and Sergeant McCrum—went to defendant's apartment to execute the warrant. The officers talked to defendant through the front door. When that discussion was unavailing, the police forced the door open. Once the police were inside, defendant sat calmly at a table and watched the officers. Corson informed defendant that he was not under arrest and that he was free to leave while the officers conducted the search. Despite that invitation, defendant remained in the apartment and even assisted the officers in their search.

The police seized various items from the apartment and obtained defendant's consent to take a polygraph test and to have his blood drawn. The police took defendant to the hospital to obtain a blood sample and then returned him to his apartment.

On August 22, 1994, Corson and Nguyen transported defendant to the location of the polygraph examination. Before the examination, the examiner, Detective Bryant, advised defendant of his Miranda rights. After the examination, Bryant informed defendant that his answers were deceptive. Defendant indicated that he wanted to talk to Corson and the others about his test. During the ensuing conversation with the officers, McCrum referred to inconsistencies in defendant's statements. Defendant became agitated and responded, "How about if I let you talk to my attorney? I want to go home." McCrum responded, "That's fine." Defendant then sat down and asked McCrum questions about the investigation, and stated, "How do you expect me to remember everybody that was outside there that day? I was drunk." McCrum answered defendant's questions, and defendant calmed down.

Defendant then went outside with the officers to smoke a cigarette. Once outside, he discussed with the officers whether he would have interfered in a fight between Dale and Jeff. He then began to ramble about having blackouts. He also asked about what the DNA analysis of the blood on his jacket might reveal. He was told that, according to preliminary tests, the blood might be Dale's, but that further testing would be undertaken. Defendant responded, "I just want to go home. Maybe you guys should talk to my attorney." McCrum replied, "Okay. Fine." They began to walk toward the police vehicle. On the way to the vehicle, defendant asked more questions of the officers and speculated about why a person might black out. Defendant asked more questions about the blood on the jacket. After the officers answered his questions, defendant declared, "I want to go home." About 7:00 p.m., the officers drove him home.

When they arrived at defendant's apartment, defendant stated, "I'm fucked either way. No matter what I tell you, the D.A. is going [to] put me in prison, that's for sure." Corson told defendant that the district attorney would review the information that the police provided to him. Defendant inquired whether the police would appoint him an attorney. Corson said he could not appoint an attorney for defendant, and explained that, if defendant wanted an attorney, he should say so, and then asked whether defendant wanted the officer not to ask any further questions without an attorney present. Corson elaborated that, "If you want to have an attorney, you need to tell me and I will not have any contact or conversation with you." Defendant replied that he knew his rights and asked for Corson's business card. Defendant took the card and said that he might call Corson later that night. He then said that he definitely would call Corson the next day. The officers left.

About a half-hour later, Corson suggested that Nguyen call defendant at his apartment. Nguyen called defendant and asked how he was doing. Nguyen intimated that he knew that defendant wanted to talk to them, but was having difficulty doing so. Defendant indicated that he was worried about going to jail and no longer receiving his social security checks. Nguyen explained that the police gather information and give that information to the district attorney to make a charging decision. Defendant agreed to speak with the police again that evening.

Corson and Nguyen arrived at defendant's...