State v. Tucker
| Decision Date | 11 February 1993 |
| Docket Number | P-3440 |
| Citation | 315 Or. 321,845 P.2d 904 |
| Parties | STATE of Oregon, Respondent, v. Michael Robert TUCKER, Appellant. CC 87; SC S35724. |
| Court | Oregon Supreme Court |
Brenda J. Peterson, Asst. Atty. Gen., Salem, argued the cause for respondent. On the brief were Dave Frohnmayer, Atty. Gen., Virginia L. Linder, Sol. Gen., and Jonathan H. Fussner, Asst. Atty. Gen., Salem.
A jury convicted defendant of ten counts of aggravated murder, ORS 163.095, 1 for the deaths of Barbara and Robert Farmer. The jury also convicted defendant of two counts of robbery in the first degree, ORS 164.415, 2 and one count of burglary in After the jury answered in the affirmative the penalty-phase questions submitted to it in accordance with ORS 163.150(1)(b) (1987), 4 the trial court merged the five aggravated murder counts relating to the murder of Barbara Farmer into one count, did the same for the five aggravated murder counts relating to the murder of Robert Farmer, 5 entered judgments of conviction, and sentenced defendant to death on those two counts, as provided in ORS 163.150(1)(e) (1987). 6 The court sentenced defendant to separate terms of imprisonment on the two robbery counts and the burglary count and ordered that the sentences imposed for those counts run consecutively.
the first degree, ORS 164.225, 3 arising out of the same criminal episode.
The case is before this court on automatic and direct review under ORS 163.150(1)(f) (1987). 7 We affirm the convictions for aggravated murder, vacate the sentences for robbery in the first degree and burglary in the first degree, vacate the sentences of death, and remand the case to the circuit court for further proceedings.
Because the jury found defendant guilty, we view the evidence in the light most favorable to the state. State v. Stevens, 311 Or. 119, 121, 806 P.2d 92 (1991). On the afternoon of October 23, 1987, defendant and his accomplice, Bryan Mikesell, drove defendant's pick-up truck to an orchard near the Farmers' home in Rickreall. Defendant and Mikesell waited in the orchard until dark and then approached the house. Defendant entered the house through the back door, armed with a handgun that he had brought with him.
Inside the house, defendant observed Robert Farmer in bed in one of the bedrooms, playing cards, and Barbara Farmer in another bedroom, watching television.
Defendant entered the bedrooms in turn and shot each of the victims once in the head. Defendant and Mikesell then removed various items of the victims' personal property from the house and placed those items in the victims' car and in defendant's pick-up. They drove both vehicles to defendant's apartment and unloaded some of the items. At that time, defendant described the killings to his girlfriend, with whom he shared the apartment.
Later, defendant, his girlfriend, and Mikesell drove the victims' car and defendant's pick-up to another location, transferred most of the remaining items into defendant's pickup, and abandoned the victims' car. In the following weeks, defendant mentioned the murders to his girlfriend almost daily and asked her to buy newspapers containing coverage of them. Defendant also threatened to kill her if she told anyone about the murders.
On December 2, 1987, defendant's girlfriend told police about defendant's participation in the murders and allowed police to search the apartment where she and defendant lived. Later that day, defendant was arrested. While defendant was being held in the Polk County Jail, he had conversations about the murders with other inmates.
On appeal, defendant raises numerous assignments of error. Most of them relate to the penalty phase of the trial. We will combine our discussion of assignments of error that present similar questions.
Defendant contends that it was error under ORS 135.405 and 135.415, Article I, section 20, of the Oregon Constitution, 8 and the Equal Protection Clause of the Fourteenth Amendment to the Constitution of the United States 9 for the trial court to deny his pre-trial motion to compel the state to offer him the same plea agreement opportunity as was afforded to his accomplice and codefendant, Mikesell. We address defendant's statutory claim first. See State v. Kennedy, 295 Or. 260, 262, 666 P.2d 1316 (1983) ().
ORS 135.405(4) states that "[s]imilarly situated defendants should be afforded equal plea agreement opportunities." ORS 135.415 sets forth non-exclusive criteria that a district attorney may consider in deciding whether to engage in plea discussions with a defendant. See State v. McDonnell, 313 Or. 478, 492, 837 P.2d 941 (1992) (). This court reviews whether a defendant was improperly denied a plea offer for an error of law. Id. at 484, 837 P.2d 941.
At the hearing on defendant's motion, the state gave three reasons for its position that defendant and Mikesell were not "similarly situated" within the meaning of ORS 135.405: the fact that defendant, who was accused of personally committing the murders, was charged with aggravated murder, whereas Mikesell was charged with felony murder; the fact that defendant had an extensive criminal record, whereas Mikesell did not; and the fact that the state had "a number of" witnesses who would testify as to the "character and propensity" of defendant, whereas it had found none to give similar testimony regarding Mikesell. We conclude that the record is sufficient to support the trial court's finding that the district attorney's decision to treat defendant and his codefendant differently did not violate ORS 135.405.
Neither was the district attorney's decision constitutionally impermissible under Article I, section 20. In deciding whether to afford a defendant an opportunity to reach a plea agreement, the district attorney "must exercise his discretion in a manner that adheres to sufficiently consistent standards to represent a coherent, systematic policy." State v. McDonnell, supra, at 313 Or. at 491, 837 P.2d 941. On the record here, the trial court was entitled to conclude that the district attorney adhered to a coherent, systematic policy.
The trial court also was entitled to conclude, on this record, that the district attorney's decision was not prompted by any impermissible discriminatory motive. See State v. Farrar, 309 Or. 132, 140-41, 786 P.2d 161 (1990) (). The district attorney offered a neutral and rational justification for treating defendant differently than Mikesell.
The district attorney's decision to treat defendant and Mikesell differently did not violate defendant's rights under Article I, section 20, of the Oregon Constitution.
For the same reasons, we conclude that there was no violation of the Equal Protection Clause of the Fourteenth Amendment to the federal constitution. This court has held that compliance with Article I, section 20, with respect to a decision not to offer a plea agreement, demonstrates compliance with the Equal Protection Clause as well. State v. McDonnell, supra, 313 Or. at 492-93, 837 P.2d 941. The trial court did not err in denying defendant's motion to compel the state to offer a plea agreement.
Defendant argues that the trial court erred in denying his motions to excuse for cause two jurors, Young and Campbell. Young's wife was a nurse at the jail where defendant was held and had given him medication. Campbell was acquainted, through membership in the same church, with Polk County Detective Manning, who testified at trial.
Defendant does not claim that those jurors should have been excused for implied bias under ORS 136.220. Therefore, the issue is whether the jurors actually were biased. Whether a juror actually is biased is a question of fact to be determined by the trial court in the exercise of its discretion. ORCP 57 D(1)(g); State v. Montez, 309 Or. 564, 574-75, 789 P.2d 1352 (1990). A trial court's determination that the jurors in a case will be impartial is entitled to "great weight," and the court's decision will not be disturbed unless it was an abuse of discretion. State v. Rogers, 313 Or. 356, 364-65, 836 P.2d 1308 (1992).
There was ample evidence in this record to support the trial court's conclusion that jurors Young and Campbell would be fair and impartial. It would serve no purpose to detail that evidence here. The trial court did not err in denying defendant's motions to excuse jurors Young and Campbell for cause.
Defendant asserts that the trial court erred in permitting the prosecutor, during closing argument, to "argue about evidence which had been stricken from the record." At trial, the state called as witnesses defendant's cellmate at the Polk County Jail, Tsow, and another inmate at the jail, Hutchison. During the state's direct examination of Tsow, the following exchange took place:
To continue reading
Request your trial
-
Thompson v. Premo
...I)(statutory term is not indefinite, because it restrict the jury to consideration of acts of criminal violence).State v. Tucker, 315 Or. 321, 337 (1993). Here, petitioner's vagueness challenge is based on an assertion that Oregon courts interpret the future dangerousness question far more ......
-
People v. Schultz
...1321–1323 [allowing unadjudicated offenses to support aggravating circumstance of continuing threat to society]; State v. Tucker (1993) 315 Or. 321, 845 P.2d 904, 913 [allowing evidence of unadjudicated "bad acts" as an aggravating factor related to defendant's future dangerousness]; Powell......
-
People v. Schultz
...1321–1323 [allowing unadjudicated offenses to support aggravating circumstance of continuing threat to society]; State v. Tucker (1993) 315 Or. 321, 845 P.2d 904, 913 [allowing evidence of unadjudicated "bad acts" as an aggravating factor related to defendant's future dangerousness]; Powell......
-
State v. Amini
...analysis under Article I, section 11, and under the Due Process Clause of the Fourteenth Amendment might differ. In State v. Tucker, 315 Or. 321, 336, 845 P.2d 904 (1993), the Oregon Supreme Court "The test for whether a particular criminal procedure violates the Due Process Clause of the F......