State v. Williams

• Decision Date: 26 March 1992
• Docket Number: CR-1815
• Court: Oregon Supreme Court
• Parties: STATE of Oregon, Respondent, v. Jeffrey Ray WILLIAMS, Appellant. CC 88; SC S36193.

Page 1006

828 P.2d 1006

313 Or. 19

STATE of Oregon, Respondent, v. Jeffrey Ray WILLIAMS, Appellant.

CC 88CR-1815; SC S36193.

Supreme Court of Oregon,

In Banc.

Argued and Submitted Nov. 7, 1991.

Decided March 26, 1992.

David E. Groom, Portland, argued the cause and filed the briefs for appellant.

Janet A. Metcalf, Asst. Atty. Gen., Salem, argued the cause for respondent. With her on the brief were Dave Frohnmayer, Atty. Gen., Virginia L. Linder, Sol. Gen., Ann Kelley and Brenda J. Peterson Asst. Attys. Gen., and Stephanie S. Andrus, Certified Law Student, Salem.

GRABER, Justice.

This case comes before us on automatic and direct review of judgments of conviction of aggravated murder and sentences of death. ORS 163.150(1)(f) (1987). Defendant seeks reversal of his convictions of aggravated murder. In the alternative, he asks this court to vacate his sentences of death and remand his case to the circuit court for a new penalty phase trial. Defendant also seeks reversal of his convictions of noncapital crimes. ¹ We affirm defendant's convictions, vacate his sentences of death, and remand the case to the circuit court for further proceedings consistent with this opinion.

I. SUMMARY OF FACTS

Because the jury found defendant guilty, we review the facts in the light most favorable to the state. State v. King, 307 Or. 332, 339, 768 P.2d 391 (1989). This case involves the second defendant convicted of murdering two young German women who were on vacation in the United States. The women were hitchhiking from California to Oregon when they met defendant and David Simonsen. Witnesses testified that they saw defendant, Simonsen, and the two women together on August 31, 1988, the day that the women were murdered. Another witness saw defendant and Simonsen later that day without the two women, but with the women's possessions. The bodies of the two women were found in a secluded spot in Coos County. They were bound and nude from the waist down and had been shot in the head at close range with a sawed-off shotgun. Simonsen confessed to having shot the women. He pleaded guilty and was sentenced to death. See State v. Simonsen, 310 Or. 412, 798 P.2d 241 (1990) (reviewing sentences).

The indictment against defendant contained 11 counts, including 6 counts of aggravated murder. ² The state's theory of the case was that defendant had ordered Simonsen to shoot the two women, or, at least, had actively participated in their deaths. The state offered evidence that defendant exercised an inordinate amount of control over Simonsen, referring to him at times as his "robot"; that defendant had made statements to other witnesses implicating himself in the murders; and that, after the murders, defendant possessed some of the victims' property.

Defendant was convicted of four counts of aggravated murder, two counts of felony murder, two counts of conspiracy to commit murder, two counts of first degree kidnapping, and one count of being a convicted felon in possession of a firearm. In the penalty phase, the jury answered "yes" to the three questions posed by ORS 163.150(1) (1987), and the trial court entered sentences of death. ³

II. GUILT PHASE ASSIGNMENTS OF ERROR

A. Motion to Dismiss Counts of Aggravated Felony Murder

Defendant first assigns as error the trial court's failure to dismiss the aggravated murder counts that were based on a felony murder theory. ⁴ Under ORS 163.095(2)(d), the defendant must commit the murder "personally." Defendant asked the trial court to remove the aggravated felony murder counts from the jury's consideration, contending that he did not commit the murders personally, because Simonsen admitted to pulling the trigger. The trial court evidently agreed, because it granted defendant's motion for judgments of acquittal on those counts at the end of the state's case-in-chief. There is no error about which to complain. ⁵

B. Sufficiency of Evidence

1. Aggravated Murder

Defendant next argues that the trial court improperly denied his motion for judgments of acquittal on all counts of aggravated murder. Defendant argues that the state did not produce sufficient evidence to permit the jury to find that he committed the crimes charged. ⁶ Specifically, defendant asserts that he may not be convicted on entirely circumstantial evidence; that there was no evidence that he was at the scene at the time of the murders; and that there was no evidence that he either ordered Simonsen to kill the women or actively participated in the killings.

In ruling on a challenge that the evidence of a crime is insufficient for the jury to have convicted a defendant, the relevant inquiry is whether, after viewing the evidence in the light most favorable to the state, a rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt. State v. Walton, 311 Or. 223, 241, 809 P.2d 81 (1991). This court has rejected defendant's argument that evidence that is "entirely circumstantial" can never be sufficient evidence to convict. See State v. Lerch, 296 Or. 377, 396, 677 P.2d 678 (1984) ("It was the intention of this court in [State v.] Krummacher [, 269 Or. 125, 139, 523 P.2d 1009 (1974),] to abolish any distinction between direct and circumstantial evidence as to degree of proof.").

Defendant contends that there was no evidence that he was present at the murders. We disagree.

Defendant's wife testified that he left home on a trip, a few days before the murders, without any possessions except a paper bag containing clothes. At 2:30 p.m. on the day of the murders, two witnesses testified that they saw defendant, Simonsen, and the two victims at a restaurant, which was a three-hour drive south of the scene of the murders. All four left the restaurant at about 3 p.m. in defendant's pickup truck, which headed north on Highway 101. At 6:45 p.m., a police officer issued defendant a speeding ticket at a point four and one-half miles from the scene of the crimes. The officer testified that there were no women passengers in the truck, but that he saw several items that were later identified as the victims' possessions. In addition, at the scene, criminalists found shoe prints that were similar to prints made by defendant's shoes, tire prints similar to prints made by the tires on defendant's truck, and fibers similar to those in the carpet in defendant's truck. That evidence was sufficient to permit the jury to find that defendant was at the scene of the crimes at the time of the murders.

Defendant also argues that there was insufficient evidence that he ordered Simonsen to kill the women or that he actively participated in the murders. Assuming arguendo that either was a necessary element of any of the theories of criminal responsibility under which defendant was convicted, we disagree with defendant's argument.

As discussed above, there was circumstantial evidence that defendant was at the scene of the crimes at the time of the murders. In addition, defendant's cousin testified that defendant and Simonsen visited her on September 3, 1988, a few days after the murders. During that visit, defendant called Simonsen his "robot" and said that "one time he had Dave [Simonsen] take care of it and Dave went 'boom, boom.' " The witness demonstrated that defendant had pretended to shoot a gun when he made that statement. Defendant also told other witnesses, shortly after the murders, that he and Simonsen had "dusted a couple of dudes," "robbed a couple of dead niggers," and "ma[de] headlines." Numerous other witnesses testified that defendant exercised great control over Simonsen and that defendant sometimes referred to Simonsen as his "robot." Defendant told witnesses that Simonsen "took care of business" for him and would do what he wanted. Finally, on the day of the murders, defendant was seen with the victims and later without the victims but with their possessions. There was sufficient evidence for the jury to find that defendant ordered Simonsen to kill the two victims or that he participated actively in the murders.

The evidence, and the reasonable inferences that the jury could have drawn from it, were sufficient to allow the jury to find defendant guilty of aggravated murder beyond a reasonable doubt. The trial court correctly denied defendant's motion for judgments of acquittal on all counts of aggravated murder.

2. Attempted Sexual Abuse in the First Degree

Defendant assigns error to the trial court's instructions to the jury that it could consider the crimes of attempted first degree rape and attempted first degree sexual abuse as crimes underlying both the aggravated murder theory based on concealment of the identity of the perpetrator of a separate crime, ORS 163.095(2)(e), and on the felony murder counts, ORS 163.115(1)(b). ⁷ Defendant does not argue that the instructions stated the law incorrectly. Rather, he argues that there was insufficient evidence to justify instructing the jury on those underlying crimes.

We need not consider whether there was sufficient evidence of attempted first degree rape, because the verdict form shows that the jury did not agree unanimously that the state had proved attempted first degree rape. The trial court instructed the jury that it must agree unanimously on all underlying crimes. It follows that the jury did not use attempted first degree rape as an underlying crime in any of defendant's convictions. Even assuming that it was error to instruct the jury on attempted rape in the first degree, therefore, any error was harmless.

The jury did find attempted first degree sexual abuse to be an underlying crime in some of defendant's convictions; therefore, we consider whether there was sufficient evidence of that crime. For evidence of an attempted crime to be sufficient, the evidence must permit a rational conclusion that defendant intentionally engaged in conduct that constituted a substantial step toward the commission of the charged crime. State...