State v. Ventris

• Citation: 50 P.3d 1274,183 Or. App. 99
• Parties: STATE of Oregon, Appellant-Cross-Respondent, v. Joseph R. VENTRIS, Respondent-Cross-Appellant.
• Decision Date: 31 July 2002
• Court: Court of Appeals of Oregon

50 P.3d 1274

183 Or. App. 99

STATE of Oregon, Appellant-Cross-Respondent, v. Joseph R. VENTRIS, Respondent-Cross-Appellant.

96-1155; A110810.

Court of Appeals of Oregon.

Argued and Submitted May 16, 2002.

Filed July 31, 2002.

Janet A. Metcalf, Assistant Attorney General, argued the cause for appellant-cross-respondent. With her on the briefs were Hardy Myers, Attorney General, and Michael D. Reynolds, Solicitor General.

Kendra M. Matthews, Portland, argued the cause for respondent-cross-appellant. With her on the briefs were Marc D. Blackman and Ransom Blackman LLP.

Before HASELTON, Presiding Judge, and WOLLHEIM and BREWER, Judges.

HASELTON, P.J.

This case is before us for the second time, following our reversal of defendant's two convictions for aggravated murder in State v. Ventris, 164 Or.App. 220, 991 P.2d 54 (1999) (Ventris I). In Ventris I, we also affirmed defendant's related "convictions" for murder and robbery. Id. at 222, 991 P.2d 54. On remand, the state elected not to retry the aggravated murder charges. On resentencing, the trial court, over the state's objections, merged defendant's convictions for murder and robbery. The state now appeals, arguing that the court erred in merging the murder and robbery convictions and in failing to impose separate sentences for those crimes. As amplified below, we conclude that, given our disposition in Ventris I, the trial court's characterization of defendant's murder conviction as being one for felony murder, not intentional murder, was erroneous and exceeded the proper scope of our remand. Consequently, we reverse the trial court's merger of defendant's murder and robbery convictions and remand for further proceedings.

Defendant, for his part, cross-appeals, challenging the trial court's adherence, in convicting defendant of murder, to another aspect of our holding in Ventris I. We affirm on the cross-appeal without further discussion.¹

Because it is central to our treatment of this appeal, we recount at some length the posture and disposition of Ventris I. This case arises from the murder of Vergil Crist in Scappoose during the early morning hours of August 10, 1996. Crist's apartment had been burglarized, and the autopsy showed that he had been beaten on the head and chest with a rod and stabbed 13 times. Ventris I, 164 Or.App. at 223, 991 P.2d 54. Crist died as a result of the stab wounds. Id. Circumstantial evidence suggested that defendant had been involved in the crime, and, ultimately, investigating officers recovered a pair of defendant's pants that bore traces of Crist's blood. Id. at 224-25, 991 P.2d 54. Thereafter, defendant confessed that he and two unnamed accomplices had entered Crist's apartment; that, when Crist surprised them, he had hit Crist in the head with the metal rod; that he had run away from the apartment, leaving his cohorts behind; and that, when he returned 20-30 minutes later, he did not see Crist but that his accomplices gave him a knife with some blood on it, which he discarded, and a wallet with cash. Defendant insisted that he did not stab Crist and was not present when Crist was stabbed. Id. at 226, 991 P.2d 54.

Defendant was charged with six counts of aggravated murder, on multiple theories, ORS 163.095, including two counts (Counts I and II) that he personally and intentionally committed the homicide in the course of committing or attempting to commit burglary in the first degree and robbery in the first degree. ORS 163.095(2)(d); ORS 163.115(1)(b).² The indictment also charged defendant with one count of murder, ORS 163.115, alleging that defendant:

"did unlawfully and intentionally cause the death of another human being, to-wit: Vergil Elmer Crist, by stabbing him with a knife or other sharp instrument, contrary to the statutes in such cases made and provided, and against the peace and dignity of the State of Oregon[.]"

Defendant was also charged with one count each of first-degree robbery, ORS 164.115, and first-degree burglary, ORS 164.225.

Before trial, defendant unsuccessfully sought to suppress his blood-stained pants and derivative evidence, arguing that the pants had been unlawfully seized without a warrant. Ventris I, 164 Or.App. at 226-27, 991 P.2d 54. In May 1997, the case was tried to the court. During the trial, the court excluded as irrelevant defendant's proffered evidence that a third person, Hernandez, had actually stabbed and killed Crist. Id. at 227, 991 P.2d 54.

The trial court found defendant guilty of aggravated murder as alleged in Counts I and II, murder, and first-degree robbery. The court explained its finding orally:

"I don't believe there were two friends with [defendant]. I believe that [defendant] was the sole intruder into Mr. Crist's apartment and I believe that [defendant] killed Mr. Crist.

"* * * * *

"In summary, I believe that [defendant] entered Mr. Crist's apartment for the purpose of committing theft which amounts to Burglary in the First Degree, when he encountered Mr. Crist he overcame Mr. Crist's resistance to that theft by killing Mr. Crist. The commission of a killing during the commission of both the burglary and then a robbery.

"I do not believe, based on the evidence, that [defendant] killed Mr. Crist either for the purpose of concealing his identity or to conceal the commission of burglary or robbery. Count One Aggravated Murder, Short version, a killing committed in the course of committing Robbery in the First Degree, guilty.

"Count Two, Aggravated Murder, killing committed in the course of committing

Burglary in the First Degree, guilty.

"* * * * *

"Count Seven, Murder, guilty.

"Count Eight, Robbery in the First Degree, guilty."

The court subsequently entered a judgment of conviction, which provided, as pertinent:

"Count 8 (Robbery In The First Degree) should merge, for purposes of conviction, into Count 1 (Aggravated Murder based on commission of Robbery In The First Degree). Count 7 (Murder) should merge, for purposed of conviction, into Count 2 (Aggravated Murder based on commission of Burglary In The First Degree). Further, that Counts 1 and 2 do not merge for purposes of conviction.

"IT IS NOW, THEREFORE ORDERED that defendant be sentenced, on Count 1 (Aggravated Murder) and Count 2 (Aggravated Murder), to a term of imprisonment for life and defendant shall be confined for a minimum of thirty (30) years without possibility of parole, release or work release or any form of temporary leave or employment at a forestry or work camp. This sentence is pursuant to ORS 163.105(1)(c), ORS 163.150. Said sentences on Counts 1 and 2 to run concurrently."

Defendant appealed and raised two assignments of error: (1) "The trial court erred in denying defendant's motion to suppress evidence derived from the warrantless seizure of defendant's clothing"; and (2) "The trial court erred in excluding evidence proffered by defendant regarding Mr. Hernandez's role in the offense." Defendant's opening brief in Ventris I described the relief that he sought as follows: "On appeal, defendant seeks reversal of his convictions for Aggravated Murder and remand to the trial court for a new trial." In the argument section of that brief, defendant contended, with respect to the denial of suppression of the bloody pants (first assignment of error) that, if that assignment of error were successful, "defendant's conviction for two counts of Aggravated Murder must be vacated, and he should be granted a new trial." With respect to the exclusion of the "other perpetrator" evidence (second assignment of error), defendant asserted:

"In this case, defendant was charged with both aggravated and `regular' murder. The evidence he sought to present tended to show that John Hernandez had actually killed Mr. Crist. That evidence was improperly excluded by the trial court, because it tended to prove that defendant was not guilty of aggravated murder.

"* * * *

"Once the trial court ruled that defendant's admissions to the police * * * were admissible, the only fact in issue on counts 1 and 2 was whether defendant or one of the `two other guys' actually killed Mr. Crist. This was the key factual distinction between whether defendant could be held responsible for aggravated murder rather than `regular' murder.' "(Emphasis added.)

We affirmed in part and reversed in part. We rejected the first assignment of error, pertaining to the bloody pants, but agreed with the second assignment of error—viz., that the trial court had erred in excluding, as "irrelevant," defendant's "other perpetrator" evidence pertaining to Hernandez. At the outset of our opinion, in describing the parties' positions, we noted:

"Defendant's convictions for robbery in the first degree and murder were merged into the aggravated murder convictions for sentencing. On appeal, defendant does not challenge either the robbery or murder convictions." 164 Or.App. at 222 n. 2, 991 P.2d 54 (emphasis added).

Ultimately, we determined that the error in excluding the "other perpetrator" evidence was not harmless and concluded, "Accordingly, we reverse and remand for a new trial on Counts I and II alleging aggravated murder." Id. at 232, 991 P.2d 54. Our "tagline," which states the appellate disposition, read:

"Convictions for murder and robbery in the first degree affirmed; convictions for aggravated murder reversed and remanded for further proceedings." 164 Or.App. at 234, 991 P.2d 54 (emphasis added).

Neither party petitioned for reconsideration or sought Supreme Court review. In particular, defendant did not take issue either with our statement that he was "not challeng[ing] either the robbery or murder convictions," 164 Or.App. at 222 n. 2, 991 P.2d 54, or with that aspect of our tagline that expressly affirmed his convictions for murder and robbery. At no point did defendant ever assert that the trial court's determination of guilt as to murder (as well as robbery) could not properly be denominated as a "conviction." Nor did defendan...