State v. Tiner

Citation340 Or. 551,135 P.3d 305
Decision Date18 May 2006
Docket Number(CC 10-95-11814; SC S47643).
PartiesSTATE of Oregon, Plaintiff on Review, v. Jeffrey Dale TINER, Defendant on Review.
CourtSupreme Court of Oregon

Mary M. Reese, Bend, argued the cause and filed the briefs for defendant on review.

Janet A. Metcalf, Assistant Attorney General, Salem, argued the cause and filed the briefs for plaintiff on review. With her on the briefs were Hardy Myers, Attorney General, Mary H. Williams, Solicitor General, and Kathleen M. Cegla and Denis M. Vannier, Assistant Attorneys General.

Before CARSON, Chief Justice,* and GILLETTE, DURHAM, RIGGS, DE MUNIZ,** and BALMER, JJ.***


This case is before us on automatic and direct appeal of defendant's judgment of conviction and sentences of death. We have considered defendant's assignments of error and conclude that the trial court erred only in the form of the judgment. We therefore affirm the convictions and the sentences, but reverse in part and remand this case to the trial court for the limited purpose of correcting the form of the judgment.


Because the jury found defendant guilty, we state the facts in the light most favorable to the state. State v. Thompson, 328 Or. 248, 250, 971 P.2d 879, cert. den., 527 U.S. 1042, 119 S.Ct. 2407, 144 L.Ed.2d 805 (1999). With permission from his California parole officer, defendant traveled to Springfield to visit Eklof in March 1993. Eklof and her three children resided with victim, who had invited them to live with him. After a party at victim's house, defendant and Eklof told victim that they wanted him to leave his house that night. Eklof and defendant argued with and then assaulted victim. By assaulting victim, defendant risked revocation of his parole. Also, in violation of his parole conditions, defendant had acquired a handgun. Defendant killed victim with Elkof's assistance. He disposed of the body in a remote forested area of the Cascade Range.

Despite changes that Eklof and defendant made to the interior of the house after victim's disappearance, such as painting the walls and replacing the carpet, the police found traces of blood in the house. Defendant later boasted to others that he had killed victim and detailed how he had disposed of victim's body. Meanwhile, Eklof participated in four videotaped interviews with police concerning the murder. In May 1994, police arrested Eklof for victim's murder. In November 1994, a mushroom hunter found victim's remains near a logging road in the Cascade Range.

In mid-1994, defendant began serving an unrelated sentence in a Nevada prison. There, he associated with members of a white-supremacist gang, the Aryan Warriors. Defendant's upper body featured various tattoos suggesting sympathy for white supremacy, including a swastika, a woodpecker, and the words "White" and "Pride." Defendant also used a Nazi symbol, SS lightning bolts,1 in a letter to his wife.

In December 1995, the State of Oregon indicted defendant for aggravated murder and other crimes relating to the murder of the victim. In August 1996, while still serving his Nevada sentence, defendant was transferred to Oregon. The trial court initially scheduled trial for November 1996, but later granted defendant's motion to postpone the trial until June 10, 1997.

On June 10, 1997, the day set for trial, the state received an adverse ruling concerning the admissibility of Eklof's videotaped statements. The trial court determined that only some of Eklof's statements were admissible as evidence, although the state argued that all four videotapes of her interviews should be admitted in their entirety. In light of the ruling, the state informed the court that it intended to appeal.

On July 7, 1997, the state filed its notice of appeal.2 There followed a year and a half devoted to settling the record on which the appeal would be based. A few days before the state's opening brief was due, the United States Supreme Court issued an opinion that caused the state's appellate attorney to reconsider whether to proceed with the appeal. See Lilly v. Virginia, 527 U.S. 116, 119 S.Ct. 1887, 144 L.Ed.2d 117 (1999) (plurality opinion regarding Sixth Amendment confrontation clause and hearsay exception against penal interest). On July 13, 1999, a little more than two years after filing the notice of appeal, the state moved to dismiss the appeal. The Court of Appeals granted the motion and issued an appellate judgment.

The trial court set a new trial date of April 4, 2000. Late in 1999, defendant moved to dismiss the case for lack of a speedy trial. The trial court issued a written order, supported by findings, rejecting defendant's motion. On April 4, 2000, trial began. A jury found defendant guilty of aggravated murder, among other crimes, and imposed a sentence of death.

Defendant raises numerous issues regarding alleged errors in his trial. We address his constitutional arguments regarding the delays in bringing him to trial, his arguments that the state improperly inspected and photographed his tattoos, and his arguments that the trial court should not have admitted evidence during the penalty phase of his gang affiliations while in prison in Nevada. We have considered defendant's other assignments of error not discussed here, but, based on our review, we conclude that no error occurred as claimed with respect to any of them, except as to the form of the judgment.


Article I, section 10, of the Oregon Constitution provides that "[n]o court shall be secret, but justice shall be administered, openly and without purchase, completely and without delay." In State v. Harberts, 331 Or. 72, 11 P.3d 641 (2000), this court explained that, when examining a speedy-trial question, this court considers the delay and prejudice to the defendant. First, this court examines the length of the delay and the reasons for the delay. Id. at 84, 11 P.3d 641. Second, the court must assess prejudice to the defendant in light of the interests that the speedy-trial requirement was designed to protect: (1) to prevent oppressive pretrial incarceration; (2) to minimize the anxiety and concern of the criminally accused; (3) and to limit the possibility that the defense will be impaired. Id. at 85, 11 P.3d 641 (quoting Barker v. Wingo, 407 U.S. 514, 532, 92 S.Ct. 2182, 33 L.Ed.2d 101 (1972)). Of those, the last is the most serious, because the inability of a defendant adequately to prepare a case skews the fairness of the entire system. Id. In that regard, defendant must show that the delay caused a reasonable possibility of prejudice to the defendant's ability to prepare a defense. Id. at 86, 11 P.3d 641.

A. Reasons for Delay

Defendant argues, and the state concedes, that the length of delay of more than four years between defendant's indictment and trial is constitutionally significant. Defendant focuses on the delay that resulted from the state's decision to appeal the trial court's adverse ruling on admission of Eklof's videotaped statements to the police.

Defendant argues that the state's appeal was not justified for several reasons. First, defendant argues that the state knew at the time that it took its appeal that the admissibility of Eklof's statements hinged on trustworthiness and reliability. The state had argued at Eklof's separate, earlier trial that she was neither trustworthy nor credible. Second, defendant argues that the state knew that its appeal, like the appeal in Harberts, was based on a fact-intensive inquiry, which usually offers little chance of success at the appellate level. Third, defendant points out that the state faced a procedurally problematic appeal because it had offered Eklof's multiple statements as a single unit. See Pumpelly v. Reeves, 273 Or. 808, 812, 543 P.2d 682 (1975) (if single offer of proof contains both admissible and inadmissible matter, rejection of entire offer is not error). Defendant also argues that the state unreasonably took more than a year to settle the record before dismissing the appeal. Finally, defendant argues that, whatever the merits of the appeal, the state did not pursue the appeal diligently.

In response, the state argues that it was justified in pursuing its appeal, because the admission of potentially pivotal evidence of defendant's guilt could well depend upon the outcome of the appeal. The state also asserts that it had a reasonable chance of success on appeal and that it was justified in pursuing its appeal because of the seriousness of the offense charged.

We conclude that the state's appeal in this case had little chance of success and, more importantly, that that conclusion should have been obvious to the state's attorneys from the outset of the appeal. At trial, the state insisted that all Eklof's statements must be admitted into evidence and did not make separate offers of evidence. It was all or nothing, according to the state. However, as defendant notes, it is beyond dispute that some of Eklof's statements were inadmissible. This court long has held that, when a single offer of proof contains admissible and inadmissible evidence, the trial court does not err if it rejects the entire offer. See Pumpelly, 273 Or. at 812, 543 P.2d 682 (so stating). We therefore conclude that the state has offered little justification for the delay.

B. Prejudice to Defendant

We turn to a determination of what, if any, prejudice befell defendant as a result of that delay. Defendant may establish prejudice in three ways: (1) the damage arising from lengthy pretrial incarceration; (2) the anxiety and public suspicion resulting from public accusation of a crime; and (3) the impairment of the defense. Harberts, 331 Or. at 93, 11 P.3d 641. Defendant asserts that he suffered all three forms of prejudice due to the delay that the state caused. In particular, defendant argues that the passage of time affected his ability to attack...

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