State v. Washington

• Decision Date: 19 June 2014
• Docket Number: SC S058490).,(CC CR0701950
• Citation: 355 Or. 612,330 P.3d 596
• Parties: STATE of Oregon, Plaintiff–Respondent, v. Michael Spencer WASHINGTON, Jr., Defendant–Appellant.
• Court: Oregon Supreme Court

355 Or. 612

330 P.3d 596

STATE of Oregon, Plaintiff–Respondent,

v.Michael Spencer WASHINGTON, Jr., Defendant–Appellant.

(CC CR0701950; SC S058490).

Supreme Court of Oregon,

En Banc.

Argued and submitted June 4, 2013.

Decided June 19, 2014.

Bronson D. James, JDL Attorneys, LLP, Portland, argued the cause and filed the briefs for defendant-appellant.

Timothy A. Sylwester, Assistant Attorney General, Salem, argued the cause for plaintiff-respondent. With him on the brief were Ellen F. Rosenblum, Attorney General, Anna M. Joyce, Solicitor General, Christina M. Hutchines and Jeremy C. Rice, Assistant Attorneys General.

LANDAU, J.

This case is before the court on automatic and direct review of defendant's judgment of conviction and sentence of death for aggravated murder. ORS 138.012(1). On review, defendant challenges 22 rulings the trial court made during the guilt and penalty phases of his trial. He asks this court to reverse his convictions for aggravated murder and felon in possession of a firearm and remand for a new trial or, alternatively, to vacate his sentence of death and remand for resentencing. We affirm both the conviction and the sentence.

I. BACKGROUND

We begin with an overview of relevant facts and describe additional facts in our discussion of defendant's assignments of error. Because the jury found defendant guilty, we view the evidence presented at trial in the light most favorable to the state. State v. Bowen, 340 Or. 487, 489, 135 P.3d 272 (2006), cert. den.,549 U.S. 1214, 127 S.Ct. 1258, 167 L.Ed.2d 89 (2007).

In 1991, defendant began a relationship with Stafford. They had two children together. At various times over the years, defendant and Stafford lived apart from each other, and, during those times, each dated other people. Defendant, however, did not approve of Stafford dating others.

In 2004, defendant and Stafford were living apart, and the children lived with Stafford. In the meantime, Stafford met Mohamed Jabbie, the victim in this case, and the two began seeing each other romantically.

In July of that year, defendant learned of Stafford's relationship with Jabbie. Early in the morning of July 4, while Stafford and Jabbie were in Stafford's home, defendant tried to call Stafford, but she refused to answer the telephone. Moments later, the bedroom window shattered. Stafford jumped out of the bedroom window and ran to a neighbor's house. She returned to her house when the police arrived and found that two doors had been kicked off of their hinges. Jabbie was not there. Stafford found Jabbie at a hospital emergency room where he was being treated for various injuries. Following the July 4 incident, Stafford continued to see Jabbie.

A few weeks later, Stafford and defendant spoke by phone. Stafford accused defendant of having broken into her home and told him that he needed to pay for the damage “or else he was going to jail.” Defendant admitted to Stafford that he had broken into her apartment and that he had assaulted Jabbie. But he replied that he was not going to jail, “[n]ot without a witness.” Stafford immediately called Jabbie to warn him that his life was in danger because he had been a witness to the July 4 incident. Defendant later met with Stafford and asked her to “help him take Jabbie out.” Stafford refused, and defendant told her that he would “do it himself.”

A grand jury convened to investigate the July 4 incident. The grand jury subpoenaed Stafford and Jabbie to testify about the incident. Defendant knew that Stafford had been subpoenaed to testify. He went to her house and tried to convince her to lie to the grand jury, threatening to kill her and to take her children if she did not. He also asked her to show him where Jabbie lived. Fearing what defendant might do if she refused, Stafford showed him where Jabbie lived, an apartment located near Clackamas Town Center in Portland.

On September 23, Stafford testified to the grand jury. Later that evening, she spoke with defendant by telephone. Defendant told Stafford that he wanted her to go to Jabbie's apartment. He told her to meet him at Clackamas Town Center.

Stafford arrived at the shopping center and called defendant's cell phone from a public phone booth, but received no answer. When defendant arrived a few minutes later, he gave Stafford one of his two cell phones. He told her to go to Jabbie's apartment and then call him as she was leaving. He told her not to use the cell phone to call Jabbie, however.

Stafford went to Jabbie's apartment, but he was not at home. She returned to Clackamas Town Center and called Jabbie from the same public telephone she had used to call defendant. Jabbie answered and agreed to meet with her. Stafford told defendant that Jabbie was at home and that she was going to meet him.

Stafford drove to Jabbie's apartment and met him in the parking lot. The two then went upstairs to the apartment. Stafford was nervous because she “knew what was coming.” While she was in the apartment talking to Jabbie, the cell phone that she had in her possession, which was on silent mode, showed several calls from defendant, which she did not answer.

After about 15 minutes, Stafford left Jabbie's apartment and placed a call to defendant as defendant had instructed her. When she opened the door to the apartment, however, defendant was already standing outside the door. He passed by her and went into the apartment. On her way down the stairs, Stafford greeted a woman. As she approached her car in the parking lot, Stafford “heard several gunshots back to back.”

In the meantime, at about 10:30 that night, two of Jabbie's neighbors, Grooms and Alcantara, had stepped outside their apartment to smoke some cigarettes. They heard an argument in Jabbie's apartment. They then observed a woman whom they later identified as Stafford come out of Jabbie's apartment, go down the stairs, and walk away. A minute later, they heard several gunshots and saw flashes through the window of Jabbie's apartment. Shortly after the shots, they saw a black male generally matching defendant's age, height, and weight leave Jabbie's apartment, go down a set of stairs at the back of the apartment building, and briskly walk away.

There ensued several phone calls between Stafford and defendant. The two met later that night, and Stafford returned defendant's cell phone to him.

A few days later, Stafford asked defendant where he had shot Jabbie. Defendant replied that he had shot him in the chest. Defendant also told Stafford that his cousin had disassembled and disposed of the gun.

On September 28, police discovered Jabbie's body, shot seven times in the chest. When the discovery was reported on television, defendant called Stafford and told her to watch the news, where she saw a picture of Jabbie.

Police investigated Jabbie's murder. Among other things, police obtained telephone records for defendant's cell phone for the day of the murder. Those records showed that, on that day, several telephone calls were made to defendant's cell phone, including two from a payphone located at Clackamas Town Center and several others between defendants' two cell phones placed between 10:00 p.m. and 10:30 p.m. using cell towers located within two blocks of Clackamas Town Center.

On September 30, 2004, police stopped Stafford in her car and asked about Jabbie's death. She admitted that she had been at Jabbie's apartment and at Clackamas Town Center on the night of September 24. She denied having seen defendant after July 4 and denied having any involvement in, or knowledge of, Jabbie's murder. Meanwhile, defendant and Stafford continued their relationship for the next three years.

Police arrested defendant and Stafford for Jabbie's murder in 2007. When detectives first interviewed Stafford, she lied about being involved with defendant and being involved in Jabbie's murder. She later agreed to testify against defendant in exchange for dismissal of the aggravated murder charge against her.

Defendant was charged with two counts of aggravated murder, ORS 163.095, one count of murder, ORS 163.115, and three counts of felon in possession of a firearm, ORS 166.270. He was tried to a jury on the aggravated murder and murder counts and to the court on the felon-in-possession counts. He was found guilty on all counts. In a further proceeding under ORS 163.150, the jury answered the applicable penalty-phase questions in the affirmative. ORS 163.150(1)(b)(A), (B), (D). The trial court merged the murder and aggravated murder convictions into one conviction for aggravated murder, merged the three convictions for felon in possession into one conviction for that crime, entered a judgment of conviction, and sentenced defendant to death. This automatic and direct review followed.

II. ANALYSIS

As we have noted, on review, defendant advances a total of 22 assignments of error concerning rulings of the trial court during both the guilt and penalty phases of the trial. We address each of those assignments in turn, detailing additional facts relevant to those assignments as necessary.

A. Motions for Judgment of Acquittal (Assignments 1–5)

At trial, defendant moved for a judgment of acquittal as to all six counts. He argued that the state's case failed for lack of sufficient evidence. Specifically, he argued that the state's case relied almost entirely on the testimony of Stafford, and, because Stafford was an accomplice in Jabbie's murder, that evidence was insufficient. According to defendant, ORS 136.440 provides that the testimony of an accomplice must be corroborated by other evidence. In this case, he argued, the state failed to introduce any such corroborating evidence other than cell phone records. In defendant's view, that evidence was inadequate to provide the required corroboration, because the state failed to establish that defendant possessed either of the cell phones at the time that the calls were made on the date of the murder. The state responded...