State v. Wright

• Decision Date: 21 March 1996
• Docket Number: Nos. CC,s. CC
• Citation: 323 Or. 8,913 P.2d 321
• Parties: STATE of Oregon, Respondent, v. Douglas Franklin WRIGHT, Appellant. CR92-073; SC S40690.
• Court: Oregon Supreme Court

Page 321

913 P.2d 321

323 Or. 8

STATE of Oregon, Respondent, v. Douglas Franklin WRIGHT, Appellant.

Nos. CC CR92-073; SC S40690.

Supreme Court of Oregon.

Argued and Submitted Jan. 12, 1995.

Decided March 21, 1996.

On automatic and direct review of the judgment of conviction and sentence of death imposed by the Wasco County Circuit Court; Donald W. Hull, Judge.

Stephen J. Williams, Deputy Public Defender, Salem, argued the cause for appellant. With him on the brief was Sally L. Avera, Public Defender.

Robert B. Rocklin, Assistant Attorney General, Salem, argued the cause for respondent. With him on the brief were Theodore R. Kulongoski, Attorney General, Virginia L. Linder, Solicitor General, and Kristin N. Preston, Assistant Attorney General.

Before CARSON, C.J., GILLETTE, FADELEY, UNIS, GRABER, and DURHAM, JJ., and DEITS, J. Pro Tem. ^*

GILLETTE, Justice.

This criminal case is before us on automatic and direct review from convictions for aggravated murder and a sentence of death. ORS 163.150(1)(g). Following a jury trial, the trial court entered a judgment finding defendant guilty of eight counts of aggravated murder, one count of kidnapping in the first degree, and one count of attempted aggravated murder, and imposed a sentence of death. We affirm.

The facts of the murders play little part in the issues presented by this appeal; a brief summary of them is sufficient. Defendant was convicted of killing four men, in separate incidents, but apparently in accordance with a common plan, during October 1991. Defendant would recruit "street people" from Portland as laborers for the alleged purpose of building a camp for young people in the Cascades near Mount Hood. Defendant would hire the men in downtown Portland, feed them, transport them to an area on the Warm Springs Indian Reservation in Wasco County, and then murder them by shooting them in the head with a powerful handgun. Police uncovered defendant's scheme when one of his intended victims escaped alive from the area where the others were killed. That victim later was able to identify defendant, his pickup truck, and the place where he lived; a pistol recovered from defendant's pickup proved to be the murder weapon.

Defendant first argues that the trial court erred in denying his motion to exclude evidence of his convictions, in 1970, of two murders not connected factually to the present offenses. We disagree. The murders were relevant to the present case, because the charge of aggravated murder was based on the fact, inter alia, that defendant previously had been convicted of murder. ORS 163.095(1)(c). ¹

Defendant acknowledges that the earlier convictions were, on their face, relevant. He argues, however, that they should have been excluded from consideration by the trier of fact in the present case, because (1) he was denied constitutionally adequate counsel in connection with the 1970 murders, (2) his guilty pleas to the 1970 murders were not knowing and voluntary, and (3) he was denied counsel in his effort to obtain a post-trial remedy from the 1970 murder convictions.

The trial court reviewed all the evidence that defendant submitted in support of his claims and made extensive findings of fact with respect to them, but ultimately concluded that defendant had failed to prove any of them by a preponderance of the evidence. In doing so, the trial court declined to give any weight to a file of the Oregon State Bar that had been amassed concerning defendant's court-appointed counsel for the 1970 murders, holding that the file did not "bear directly on the matter at hand." ²

The state first responds by arguing that defendant is not entitled to attack his former convictions collaterally under the pertinent circumstances. We do not address that contention because, even if defendant were entitled to have his theories addressed on the merits, they do not help him. The trial court's rulings on this subject are supported by the court's findings of fact concerning the factual and procedural circumstances relating to each of defendant's theories, and those findings are supported in turn by evidence in the record. See, e.g., State v. McDonnell, 313 Or. 478, 485, 837 P.2d 941 (1992) (court bound by trial court's findings of historical fact, where those facts supported by evidence in the record). A further discussion of this assignment, which boils down to a failed attempt, long after the fact, to justify post-conviction relief, would not benefit bench or bar. This assignment of error is not well taken.

Defendant next assigns error to the trial court's admission, during the guilt phase, of evidence of a statement that defendant made to a friend while defendant was in jail and awaiting trial on the present charges. The statement occurred when the friend remarked to defendant that everything seemed to be going "okay." Defendant replied that that was true, "except for the guns." Defendant argued at trial that the statement was not an admission and was not relevant.

This is not an issue that requires an extensive review of the law of evidence. The statement was a garden variety statement by a party, offered against the party. See OEC 801(4)(b)(A) (statement not hearsay if offered against a party and was the party's own statement). The statement was relevant to defendant's possession of the murder weapon. This assignment of error is not well taken.

Defendant next assigns error to the trial court's failure to grant a mistrial after the father of one of the victims "glared" at defendant while returning from the witness chair to his seat. The trial judge, who saw the incident, stated:

"Well, at this time I'm going to deny the motion. I did observe Mr. Barker to stare at the defendant. In my observation of it, it wasn't of sufficient magnitude to cause a mistrial or incite the jury in this case."

This case presents a classic example of why this court defers to a trial court's assessment of the need for a mistrial in most circumstances: The trial judge is in the best position to assess the impact of the complained-of incident and to select the means (if any) necessary to correct any problem resulting from it. See, e.g., State v. Rogers, 313 Or. 356, 382, 836 P.2d 1308 (1992) (illustrating proposition), cert den Rogers v. Oregon, 507 U.S. 974, 113 S.Ct. 1420, 122 L.Ed.2d 789 (1993). We defer to the trial judge's exercise of discretion here. This assignment of error is not well taken.

The foregoing assignments of error are the only ones dealing with issues that arose during the guilt phase of defendant's trial. As noted, we find none of the assignments to be well taken. It follows that all defendant's conviction, for aggravated murder, kidnapping, and attempted aggravated murder, are affirmed. We turn now to assignments of error relating to the penalty phase of the trial.

In his fourth assignment of error, defendant argues that the trial court erred, during the penalty phase of the case, in refusing to allow him to call witnesses for the purpose of asking those witnesses "whether they believed that [defendant] should receive a death sentence."

After the state had rested its case in the penalty phase of the trial, the state moved for an order excluding from the jury's consideration any lay opinion evidence on the ultimate issue in the case, viz., whether defendant should receive the death penalty. Defense counsel asserted that his client had the right to offer such evidence:

"[DEFENSE COUNSEL]: Well, Your Honor, I think it's entirely appropriate for a witness who is familiar with the defendant to express his opinion about what a proper penalty would be. And I would want to ask that question to each of these witnesses. I would want to ask the question, 'Do you believe Doug Wright should receive the death penalty?' * * *

" * * * * *

" * * * We can bring in people that know the defendant, not just people who are, you know, dyed in the wool opponents of the death penalty, who have been associated with him, know him, care for him, love him; that's mitigation. He's impressed them enough in all walks of his background and life, he impressed these people enough to where even though they know the horribleness of the situation, care for him enough to make a plea for him, and I think that's mitigation."

After taking the matter under advisement, the trial court ruled that the proffered evidence was not admissible. Defendant assigns error to that ruling.

The state first argues that there has been no satisfactory offer of proof with respect to the proffered testimony. Normally, when the exclusion of evidence is assigned as error, an offer of proof is required. This court has explained that rule in the following way:

"The primary purpose of the offer of proof is to enable an appellate court to determine whether the exclusion was erroneous and, if so, harmful, i.e., whether the error affected a substantial right of the appellant. Other purposes are to permit the trial judge to reconsider his or her ruling in view of the actual evidence to be offered and to enable opposing counsel to take appropriate action."

State v. Smith, 319 Or. 37, 43-44, 872 P.2d 966 (1994) (citations omitted); see also State v. Busby, 315 Or. 292, 298, 844 P.2d 897 (1993) ("[u]nder OEC 103(1)(b), when a trial court excludes testimony or other evidence, an offer of proof by the proponent of the evidence is required to preserve any claim of error related to what the evidence would have shown"); State v. Olmstead, 310 Or. 455, 459-60, 800 P.2d 277 (1990) (offer of proof required when evidence excluded on relevance grounds); State v. Affeld, 307 Or. 125, 129, 764 P.2d 220 (1988) ("an offer of proof is not required * * * [when it] is impossible because of a trial court's refusal to allow the offer of proof to be made").

It is not a violation of the familiar requirement of an offer of proof to hold that, in the present case, defendant sufficiently disclosed the evidence that he intended to...