State v. Walton

CourtSupreme Court of Oregon
Citation809 P.2d 81,311 Or. 223
PartiesSTATE of Oregon, Respondent, v. Tyrone Earl WALTON, Appellant. TC C8708-34157; SC S35078.
Decision Date04 April 1991

Page 81

809 P.2d 81
311 Or. 223
STATE of Oregon, Respondent,
v.
Tyrone Earl WALTON, Appellant.
TC C8708-34157; SC S35078.
Supreme Court of Oregon,
In Banc.
Argued and Submitted Oct. 10, 1990.
Decided April 4, 1991.

Page 84

[311 Or. 224C] David K. Allen, Portland, argued the cause and filed the brief for appellant.

Brenda J Peterson, Asst. Atty. Gen., Salem, argued the cause for respondent. With her on the brief were Dave Frohnmayer, Atty. Gen., Virginia L. Linder, Solicitor General, Cynthia A. Carter, Jonathan H. Fussner, Vera Langer, Janet A. Metcalf, and Douglas F. Zier, Asst. Attys. Gen., Salem.

[311 Or. 225] VAN HOOMISSEN, Justice.

This is an automatic and direct review of a judgment of conviction of aggravated murder and sentence of death. Former ORS 163.150(1)(f) (1987) (now ORS 163.150(1)(g)). Defendant seeks reversal of his conviction of aggravated murder. Alternatively, he requests this court to vacate his sentence of death. He also seeks reversal of his convictions of felony murder and robbery in the first degree. 1 We affirm defendant's convictions. We vacate his sentence of death and remand this case to the circuit court for further proceedings consistent with this opinion.

SUMMARY OF FACTS

The jury found defendant guilty. Therefore, we view the evidence in the light most favorable to the state. State v. King, 307 Or. 332, 339, 768 P.2d 391 (1989).

The crimes that defendant was convicted of committing in this case occurred on June 22, 1987. At trial, however, the state presented evidence of several events that occurred both before and after that date. Therefore, we summarize the entire course of events in chronological order.

On May 16, 1987, defendant and Jolene Abbott went to a Minit Mart convenience store at Southeast 39th and Yamhill Streets in Portland. Defendant was wearing a cap to disguise a distinctive half-moon scar on his forehead. Armed with a sawed-off shotgun, defendant robbed the Minit Mart. At trial, Abbott identified State's Exhibit # 14 as the sawed-off shotgun that defendant had used while robbing the Minit Mart on May 16.

Early in June, 1987, defendant and Marion Tillman drove to two convenience stores in the Beaverton area. Defendant told Tillman that one of the stores would be "a good lick." Tillman understood that to mean the store would be a good target for stealing money. Defendant and Tillman then returned to his house. Defendant went inside and returned [311 Or. 226] with a sawed-off shotgun, which he showed to Tillman, and asked, "Do you think [this] will scare somebody?" At trial, Tillman identified State's Exhibit # 14 as the sawed-off shotgun that defendant had shown her early in June.

A few days later in June, 1987, defendant asked Tillman to drive him to a Plaid Pantry store at North Killingsworth and Denver Streets in Portland. Although at first she agreed, Tillman later changed her mind, because she "didn't want to be involved." After being arrested on the instant charges, defendant telephoned Tillman several times and suggested that she

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fail to appear at his trial, or that she change her testimony.

After those events with Tillman, in June, 1987, defendant and Abbott rented a car in Portland to drive to Colorado. They returned to Portland on June 20 and spent June 21 engaged in shoplifting, selling the proceeds of their thefts to obtain money, and using the money to buy cocaine, which they then used.

Early on June 22, their rental car was vandalized. Defendant and Abbott decided on a likely suspect for the vandalism, returned to defendant's mother's house, obtained the sawed-off shotgun (State's Exhibit # 14), then drove around until they found the suspect and threatened him. Later, defendant, Abbott, and their friend, Marcia Harris, attempted to recontact the suspect, failed, and returned to defendant's mother's house to consume more cocaine.

Having spent all their money, defendant and Abbott decided that they needed more money to buy more cocaine. At about 8:00 a.m. on June 22, Abbott drove defendant in the rental car to the Plaid Pantry convenience store at North Killingsworth and Denver Streets. He was wearing a blue baseball cap, a black sweatshirt, black jeans, and tennis shoes. Defendant got out of the car carrying the sawed-off shotgun in a bag. He told Abbott to keep the motor running and went into the store. While sitting in the car, Abbott heard a shot. Defendant came out of the store, sticking the sawed-off shotgun back into the bag. Abbott asked defendant whether he had shot somebody. Defendant answered that he had shot the Plaid Pantry clerk, because "the man was stepping from the counter like he was going to go step on an alarm or something."

[311 Or. 227] Minutes later, the Plaid Pantry clerk was found dead beneath the store's open cash register. The cause of death was shotgun wounds to the chest and heart. An audit of the Plaid Pantry cash register showed a shortage of $79.00. Witnesses to the Plaid Pantry incident described the suspect as a slender, young, black male wearing a cap and dark jogging clothes. A witness saw a car, matching the description of the car that defendant and Abbott had rented, leaving the scene.

Defendant and Abbott then returned to his house. At defendant's request, Abbott hid the sawed-off shotgun in the neighborhood. Unknown to defendant, Abbott also hid defendant's blue baseball cap under the dining room couch at defendant's mother's house. She hid the cap, believing that defendant would be less likely to commit more robberies if he could not find the cap because he needed it to cover the distinctive half-moon scar on his forehead.

Next, defendant gave money in small bills to Harris and told her to buy more cocaine. Harris left with the money and returned with cocaine, which defendant, Abbott, and Harris then consumed. The following day, defendant and Abbott returned the rental car.

Detective Law, who was assigned to investigate the Plaid Pantry murder and robbery, interviewed several persons, including Abbott. As a result of information that he obtained from them, Law searched for and found the sawed-off shotgun where Abbott said she had hidden it on June 22.

On August 7, 1987, Law obtained a warrant for defendant's arrest. Thereafter, Law and Detective Nelson drove to a house on Northeast Mallory Avenue, where defendant was then living with Marcia Harris. The detectives saw defendant standing in front of the house talking to Harris. Law addressed defendant by his name, Tyrone Walton. Defendant responded by saying that that was not his name, but that his name was Ronnie Martin. Law had a photograph of defendant, and he told defendant that he knew who defendant was. Law then told defendant that he was looking for Abbott. Defendant denied knowing her.

Law asked defendant whether the detectives could talk with him. Defendant agreed, and he invited the [311 Or. 228] detectives to the front porch of the house. A wide-ranging discussion followed, during which Law asked defendant about his possession of a sawed-off shotgun. Defendant denied possessing a sawed-off shotgun. Law showed defendant State's Exhibit # 14. Defendant

Page 86

denied having seen it before. Law asked defendant about his possession of a rental car matching the description of the Plaid Pantry getaway car. Defendant denied possessing a rental car. Law asked defendant whether he had ever telephoned "911" to implicate Abbott in the Plaid Pantry crimes. Defendant denied telephoning "911." Law asked defendant if he would go to the police station voluntarily to clear up questions about whether he had called "911" to implicate Abbott in the Plaid Pantry crimes. Defendant agreed to do so.

At the police station, defendant was advised of his Miranda rights, which he said he understood and was willing to waive. He agreed to talk with the detectives. During the interview, defendant admitted that he knew Abbott and that he had lived with her, but he stated that she had moved from their house weeks earlier and that he had not seen her for several days. He admitted that on July 28, 1987, he had telephoned "911" to implicate Abbott in the Plaid Pantry crimes. He explained that he had done so because he was angry with Abbott for moving from their house and terminating their relationship. He stated that the information he had given to "911" was untrue. He acknowledged knowing Marion Tillman but denied having talked to her about any robbery. He denied owning or wearing a cap, denied possessing a sawed-off shotgun, denied having seen State's Exhibit # 14, and denied possessing a rental car.

Law then attempted to question defendant about the May 16, 1987, Minit Mart convenience store robbery. Defendant responded that he did not want to say any more, and the interview was terminated. Defendant was taken to an elevator for transfer to the jail intake section. As he got on the elevator, defendant spontaneously asked Law what he was being charged with. Law answered that defendant was being charged with first degree robbery and aggravated murder. Defendant then exclaimed, "You got me on the first one, but you can't prove the other one." When Law asked defendant [311 Or. 229] what he meant by "the first one," defendant answered, "the robbery." 2

Defendant was charged with two counts of aggravated murder (personal and intentional murder committed in the course of and in furtherance of robbery in the first degree; and murder committed in an effort to conceal the identity of the perpetrator of a crime); one count of felony murder; and one count of robbery in the first degree. A jury returned a unanimous verdict of guilty on all four counts. In the penalty phase, the jury answered "yes" to the three questions posed by former ORS 163.150(2). Thereafter, the trial court entered a judgment of conviction and sentence of death.

ASSIGNMENTS OF ERROR

A. GUILT PHASE

Pre-Miranda Statements

Defendant contends that the trial court erred in denying...

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