Argued and Submitted June 4, 2013.
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CC CR0701950. On automatic and direct review of the judgment of conviction and sentence of death imposed by the Clackamas County Circuit Court. Thomas Rastetter, Judge.
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, Assis tant Attorneys General.
[355 Or. 614] 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.
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 [355 Or. 615] 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 [355 Or. 616] 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 [355 Or. 617] 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.
[355 Or. 618] 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 that, while the statute does require corroborating evidence, there is in this case " evidence in droves" connecting defendant to Jabbie's murder. The trial court denied defendant's motions without elaboration.
On appeal, defendant now assigns error to the trial court's denial of his motion for a judgment of acquittal as to the first five charges against him. Specifically, defendant argues, as he did below, that the state's case relied almost entirely on the testimony of his accomplice, Stafford, and that there was insufficient evidence to corroborate her testimony, as required under ORS 136.440. Defendant begins by asserting that the statute requires a reviewing court to eliminate any reference to the testimony of the accomplice [355 Or. 619] and then determine whether the remaining evidence suffices to connect him to the offense. Moreover, he argues, the remaining evidence " cannot be equivocal" ; rather, it must be certain and " inconsistent with innocence." In that regard, defendant argues that evidence that establishes mere association with the accomplice or that establishes that defendant was only in the general vicinity of the offense is insufficient to corroborate the testimony of an accomplice. With that view of the law in mind, defendant then argues that the evidence other than Stafford's testimony was " virtually non-existent," consisting of cell phone data that established " mere association and location."
The state responds that defendant is incorrect in asserting that the court must completely disregard Stafford's testimony and determine whether independent evidence establishes defendant's guilt. What the statute requires, the state argues, is other evidence that " tends to connect" defendant with the commission of the offense. In that regard, the state argues that there is ample evidence that connects defendant with Jabbie's murder, including evidence that defendant had previously broken into Jabbie's apartment and assaulted Jabbie; that Jabbie was scheduled to be a witness in the case against him arising out of that incident; that witnesses saw Stafford leave Jabbie's apartment shortly
before the shooting, followed by a man generally matching defendant's description after the shooting; and evidence showing the use of defendant's cell phones at the time of the murder, which precisely corroborates Stafford's testimony about her movements and defendant's movements before, during, and after the shooting.
ORS 136.440 provides:
" (1) A conviction cannot be had upon the testimony of an accomplice unless it is corroborated by other evidence that tends to connect the defendant with the commission of the offense. The corroboration is not sufficient if it merely shows the commission of the offense or the circumstances of the commission.
" (2) As used in this section, an 'accomplice' means a witness in a criminal action who, according to the evidence adduced in the action, is criminally liable for the conduct of the defendant under ORS 161.155 and 161.165 ***."
[355 Or. 620] In this case, the parties do not dispute that Stafford was an " accomplice" within the meaning of subsection (2). Her testimony, therefore, is insufficient to support a conviction unless it was " corroborated by other evidence that tends to connect the defendant with the commission of the offense," as required in subsection (1).
At the outset, we reject defendant's contention that ORS 136.440 requires " unequivocal" evidence that is " inconsistent with innocence" and establishes, independently of the testimony of the accomplice, defendant's guilt. This court has long held that
" [t]he corroboration need not be of itself adequate to support a conviction *** 'Any corroborative evidence legitimately tending to connect a defendant with the commission of the crime may be sufficient to warrant a conviction, although standing by itself it would be only slight proof of defendant's guilt and entitled to but little consideration, and even though it is not wholly inconsistent with the innocence of the defendant. "
State v. Reynolds, 160 Or. 445, 459, 86 P.2d 413 (1939). Consistently with those principles, the court more recently summarized the requirements of ORS 136.440 as follows:
" By its terms, ORS 136.440(1) requires only that the corroborating evidence tend to connect the defendant with the commission of the offense, here, aggravated murder. That statute does not require corroboration of a particular theory of the commission of the offense.
" It is not necessary that the corroborating evidence be direct and positive; it may be circumstantial. Nor is it necessary that there be independent corroborating evidence with respect to every material fact necessary to be established to sustain a conviction for the commission of a crime. Where there is any evidence apart from that of the accomplice tending to connect the defendant with the commission of the crime, the question of whether the accomplice's testimony is corroborated is one for the trier of fact."
State v. Walton, 311 Or. 223, 242-43, 809 P.2d 81 (1991) (citations omitted; emphasis in original). To be sure, evidence of a defendant's association with an accomplice at a particular location, by itself, is insufficient to satisfy the corroboration [355 Or. 621] requirement of ORS 136.440. State v. Carroll, 251 Or. 197, 200, 444 P.2d 1006 (1968). But such evidence still may be considered in conjunction with other evidence that, taken as a whole, tends to connect the defendant with the commission of the offense. See id.
With those principles in mind, we conclude that the record contains sufficient evidence to corroborate Stafford's accomplice testimony relating to the commission of Jabbie's murder. There is evidence that defendant broke into Jabbie's apartment on July 4, 2004, and assaulted Jabbie. There is further evidence that Jabbie testified before a grand jury about the incident and that, the day before the murder, the grand jury issued an indictment charging defendant with first-degree burglary and fourth-degree assault. The evidence at trial thus established that defendant had assaulted Jabbie once and had motive to assault him--a key witness against defendant--the day after the indictment was issued. See State v. Klein, 243 Or.App. 1, 12, 258 P.3d 528 (2011), aff'd,
352 Or. 302,
283 P.3d 350 (2012) (accomplice's " rendering of the motive for the crimes" was confirmed by other evidence relating to the events giving rise to the alleged motive).
In addition, the evidence at trial included the testimony of Grooms and Alcantara, who saw Stafford leave Jabbie's apartment at about 10:30 p.m., heard gunshots fired moments later, and witnessed flashes through the window of Jabbie's apartment. They also saw a man generally matching defendant's description leave the apartment immediately after that.
The evidence at trial also included cell phone data corroborating precisely Stafford's testimony about her and defendant's movements the night of the murder. Specifically, the cell phone records show that a number of calls were placed to defendant's cell phone, including two from a pay phone located at Clackamas Town Center and several others between defendant's 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. Taken in isolation, the cell phone data constitute mere association and location evidence, as defendant suggests. But in the context of the other evidence, it " tends to connect" defendant with the murder.
[355 Or. 622] In evaluating the sufficiency of the foregoing evidence, we stress that ORS 136.440(1) does not require complete corroboration of all of the elements of the offense. Nor does it require that corroborating evidence be direct and unequivocal. As this court emphasized in Walton, where there is " any evidence * * * tending to connect" the defendant with the commission of the offense, the question whether evidence corroborates the accomplice's testimony is one for the trier of fact. 311 Or. at 243. The evidence produced in this case meets that standard. The trial court therefore did not err in denying defendant's motions for judgment of acquittal on the first five charges against him.
B. Use of Stun Device (Assignment 6)
In his sixth assignment, defendant asserts that the trial court erred in ordering that he wear a stun device during trial. The facts relevant to that assignment are as follows. In a pretrial hearing, the Clackamas County Sheriff's Office required defendant to appear in court wearing a stun device. Defendant also learned that he would be required to wear a similar device during the trial. He objected, arguing that requiring him to wear a stun device during trial would violate his right to communicate with counsel and assist in his defense as guaranteed by Article I, section 11, of the Oregon Constitution and the Sixth and Fourteenth Amendments to the United States Constitution.
The trial court held a hearing on defendant's objection. At that hearing, the state offered the testimony of Sergeant Phillips of the sheriff's office in support of requiring defendant to appear in court wearing a stun device. Phillips explained that the sheriff's office was responsible for security at the courthouse. He testified that defendant was a member of a gang, that he had " about 40 to 50" associates, and that the sheriff's office was concerned that--either working alone or in concert with defendant--those persons might aid him in escaping from the courthouse; when asked, he agreed that gangs like the one with which defendant was associated " use power, influence, and violence to intimidate others." Phillips also agreed that, based on defendant's " athletic ability and strength," he was capable of overpowering a deputy in the courtroom. The deputy was aware of [355 Or. 623] the charges in the case and that defendant had a " criminal history of violence" and agreed that defendant's reported threats against Stafford were a " concern." Phillips stated that defendant was classified as a " dangerous inmate" and that he was aware that defendant had told a deputy at the jail that the deputy was " not his boss." He said that, without the use of the stun device, he could not " assure" the security of the courtroom. He noted that, in the courtroom, there would be numerous persons within 30 feet of defendant and that defendant could cover that distance in the time it would take a deputy to react.
Phillips also described the stun device that the sheriff's office planned to use. The device was manufactured by the Stinger Company
and was called a " React Band-it." It was rectangular in shape and approximately four inches wide, six inches high, and one and one-half inches deep; it weighed approximately one pound. The device was meant to be worn on a limb or on the lower back underneath the subject's clothing. It was classified as a " neuromuscular incapacitation" device that used " high levels of voltage with very low amperage" to deliver an electric shock to the wearer. Typical effects caused by activation of the device included pain, loss of mental focus, and uncontrollable muscle contractions in the area of the body where the device was located; Phillips testified that " people tend to fall down when they're shocked" and " make loud noises" and that " [s]ome people freeze up in place." He also explained that, more rarely, persons urinate or defecate when shocked. Phillips noted that defendant would be able to walk with the device in place and that, depending on the cut of his clothing, the device would not be visible to the jury. He said that the device could only be activated by the deputy holding the triggering device.
Phillips further testified that the " next most restrictive device" that was available was shackles and that those would be " observable," and that a leg brace which could be worn under clothing was not " reliable" in preventing a defendant from escaping custody. He stated that other available security devices included handcuffs, fabric hobbles, Tasers, pepper spray, " impact weapons," and firearms. Phillips described the " general nature" of security in the court [355 Or. 624] building, including the fact that it had multiple unlocked exits.
On cross-examination, Phillips testified regarding a notification form that persons signed when the device was used. The form explained the results of activation of the device, including falling to the ground and the " possibility" of " self-urination" and " self-defecation." The form also indicated that certain medical conditions were relevant to the decision whether to use the device, including heart disease, multiple sclerosis, and pregnancy. The form listed the types of actions by a wearer of the device that might result in its activation, including " any outburst or quick movement," " any hostile movement," " tapping of the belt," failure to comply with verbal commands, any attempt to escape custody, the custodial deputy's " loss of vision" of the wearer's hands, and " any overt act against any person or deputy."
When asked whether defendant would be " conscious of the fact that you have this on," Phillips responded, " Yes." He confirmed that, as he had testified on direct examination, the plan to require defendant to wear the stun device was based in part on the " possibility," not the " probability," of " gang activity." Phillips was not aware of any history of escape attempts, violence in the jail, or " acting out in a courtroom" by defendant. He testified that it " could be" that someone in the courtroom could see the deputy holding the triggering device.
Defendant argued to the trial court that there was nothing to suggest that he was an escape risk or that he was dangerous in the current proceeding. He asserted that, " [w]hen you talk about gang activity it's speculative." He argued that the device " would be likely to inhibit his ability to assist in his own defense" and that it would be an " imposition" on his ability to testify. He argued that there was no factual basis for the use of the device and that the court was required to consider " lesser" alternatives.
The trial court found and ruled as follows:
" *** that [defendant] is a convicted felon and also has a history of convictions of person crimes involving violence; that in this case [defendant] faces a--if he is convicted [355 Or. 625] faces a substantial sentence and the risk of the death penalty; that [defendant] has a history of gang contacts and affiliations; that [he was] alleged to have intimidated witnesses in this case, and to have murdered a witness regarding charges in [another county]; that we have a lack of a secure courtroom; that there are exits from courtrooms into public areas, and many exits from the courthouse to the street; that the defendant if he were not encumbered in some way he would have a means of escape if there were no security device; that he will be in civilian clothing which would aid in his escape; that the Sheriff's Department cannot guarantee
security in this case without some sort of device; [g]iven the defendant's size and physical capacities [defendant] poses the risk of overpowering a deputy or a witness if he's not restrained; that given the facts of this case it would be difficult for law enforcement or personnel [sic] to identify any of [defendant's] confederates that might be present in the courtroom; that the stun device will be operated only by trained personnel; that the device * * * will not be visible under clothing; that the defendant will be seated at counsel table furthest away from the jury so as to minimize any possibility that something might be visible; that unless the device was activated it would not impede the defendant's movements or ability to consult with his attorney; that this device is the least visible, least intrusive means of providing the security necessary for this trial; that because of these factors the defendant poses an immediate and serious risk of escape during the trial and [an] immediate and serious risk of disrupting the proceedings, and that because of all those [factors], the Stinger React Band-it, [is] an appropriate device for security in this case."
After the trial court made those findings, Phillips further explained that the deputy holding the triggering device would be in uniform and that, in his experience, members of the public would not recognize the triggering device as part of a stun device system. The trial court ordered that the deputy holding the triggering device be in uniform. The next day, before jury selection began, the trial court found that the device, which was on defendant's leg, was not visible and that the hands of the deputy holding the triggering device " would probably not be visible to the jurors." The trial court made a similar finding at the beginning of each day of trial.
[355 Or. 626] On review, defendant again contends that use of the stun device failed to comport with Article I, sections 11 and 13, the Sixth Amendment, and the Due Process Clause of the Fourteenth Amendment. Specifically, defendant argues that, if seen by a jury, such a device might prejudice the jury against a defendant, thereby impairing his right to a fair trial; and that, even if the device is not seen, it might impede a defendant's ability to communicate with counsel and participate in his or her defense. Defendant notes that the latter concern is ...