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State v. Cockrell

Court of Appeals of Oregon

April 12, 2017

STATE OF OREGON, Plaintiff-Respondent,
v.
DONALD LEE COCKRELL, Defendant-Appellant.

          Argued and submitted August 18, 2015.

         Clackamas County Circuit Court CR1101145 Susie L. Norby, Judge.

          Zachary Lovett Mazer, Deputy Public Defender, argued the cause for appellant. With him on the brief was Peter Gartlan, Chief Defender, Offce of Public Defense Services.

          Rolf C. Moan, Assistant Attorney General, argued the cause for respondent. With him on the brief were Ellen F. Rosenblum, Attorney General, and Anna M. Joyce, Solicitor General.

          Before Sercombe, Presiding Judge, and Hadlock, Chief Judge, and DeHoog, Judge. [*]

         Case Summary:

         Following a jury trial, defendant was convicted of three counts of murder by abuse and five counts of first-degree criminal mistreatment, primarily relating to the death of his three-year-old daughter, A. On appeal, defendant asserts that the trial court erred in refusing to order the state to provide notes of witness Smith's grand jury testimony either before or after Smith testified at trial, and in refusing to conduct an in camera review of those notes. He also argues that the trial court plainly erred in imposing sentences on two counts of murder by abuse that it had earlier ruled would merge into another count. Held: Defendant was not entitled to notes of grand jury testimony under state law. Furthermore, defendant failed to make any showing that the grand jury notes were either favorable or material and, accordingly, did not establish that his due process rights were violated by the trial court's decision not to order disclosure or to conduct an in camera review of the notes. Finally, although the judgment in this case purports to merge three sentences for murder by abuse as well as the convictions, it is also clear from the judgment that each of the three counts in question is an alternative theory for the same crime and that the three convictions merge. Under the circumstances, even assuming that the trial court plainly erred, the Court of Appeals would not exercise discretion to correct the purported error on merger of the sentences.

          SERCOMBE, P. J.

         Following a jury trial, defendant was convicted of three counts of murder by abuse, ORS 163.115, and five counts of first-degree criminal mistreatment, ORS 163.205, primarily relating to the death of his three-year-old daughter, A.[1] In his first eight assignments of error, defendant contends that the trial court erred when it denied his motions for judgment of acquittal on the murder by abuse and criminal mistreatment charges. In addition, in his twelfth and thirteenth assignments, defendant asserts that the trial court erred in its response to a question from the jury during deliberations. We reject all of those assignments of error without discussion. In his ninth through eleventh assignments of error, defendant asserts that the trial court erred in refusing to order the state to provide notes of a witness, Smith's, grand jury testimony either before or after Smith testified at trial, and in refusing to conduct an in camera review of those notes. Finally, in his fourteenth and fifteenth assignments of error, defendant argues that the trial court erred in imposing sentences on two counts (Counts 4 and 6) that it had earlier ruled would merge into another count (Count 2). As explained below, we reject defendant's ninth through eleventh and fourteenth and fifteenth assignments of error and, therefore, affirm.

         I. BACKGROUND FACTS

         A was found dead on Saturday, January 9, 2010. In the months before that, beginning in October 2009, A lived exclusively with defendant and his fiancee, Smith. The other children in the household were As younger sister, K, Smith's young daughters E and J, and Smith and defendant's child, C. During that time period, As mother saw her on only two to three occasions.

         On January 9, based on a 9-1-1 call, emergency responders were sent to the home where defendant and Smith lived-an apartment under Smith's parent's house-having been told that a child had jumped on another child's head, and the child who had been jumped on was not breathing. Upon arriving at the scene, the circumstances did not appear to be consistent with the report they had received. A's body was lying on the floor and the pajamas she was wearing had been partly unzipped. She appeared emaciated and had many bruises on her face and body. It soon became clear that A had been dead for some time and that efforts to revive her would be futile. A lead paramedic made a call requesting that law enforcement response be expedited and, after talking to a police officer about what they had observed at the scene, medical personnel left. As part of the criminal investigation that followed, police officers separated defendant and Smith, took initial statements from them, photographed the scene, and called in the medical examiner.

         An autopsy was conducted the following day by Dr. Larry Lewman. Lewman determined that the cause of A's death was physical and nutritional child abuse. He found in excess of 70 bruises on A's body. A was also emaciated, weighing only 21.25 pounds-so little that her weight was well below the percentiles reflected on growth charts so that she was, essentially skin and bones. There was no food in her digestive tract and she had suffered from starvation. She was also dehydrated and blood vessels in both of her eyes had burst. According to the doctor, the "terminal mechanism"-that is, the immediate mechanism of A's death-was bronchopneumonia and dehydration. In other words, A suffered from starvation that, in turn, compromised her system to such a degree that she ultimately succumbed to pneumonia.

         On January 10, 2010, after the autopsy was performed, defendant and Smith were each interviewed by police. In her statement to police that day, Smith did not admit any culpability in A's death, nor did she provide any explanation for it. She did tell officers that A was very slow to eat and had not wanted to eat or drink over the past several days. She also said that A and K had developed coughs over the past few days and that A had been throwing up, dry heaving, and had woken up with "goopy" eyes. The interview was terminated after approximately 30 minutes; at that point, an officer began to question Smith about the discipline that had been used in the household and she invoked her right to counsel. After the interview, defendant and Smith were arrested and criminally charged in relation to A's death. In December 2010, as part of an agreement to plead guilty to aggravated murder in relation to A's death, Smith made another statement to police and agreed to give evidence before a grand jury and at trial. The state presented Smith's testimony to the grand jury, which returned an indictment charging defendant with aggravated murder, murder by abuse, and first-degree criminal mistreatment.

         Ultimately, Smith was one of the witnesses called by the state at defendant's trial on those charges. Among other things, Smith explained that during her relationship with defendant she was addicted to opiates. She engaged in drug seeking behaviors, going to multiple doctors to obtain prescriptions for opiates and also purchasing prescription opiates from a drug dealer. She kept a pill crusher, which defendant knew about, in the bathroom and would crush the pills and snort them. According to Smith, defendant was well aware of her drug addiction.

         According to Smith, in August 2009, defendant, Smith, and the children moved into the apartment under Smith's parent's home. They were expected to pay rent, but did not do so as neither of them was working for much of the time they lived in the apartment. Eventually, Smith's parents insisted that they begin paying rent, and, in the middle of December 2009, defendant began working. He worked weekdays and had weekends and Christmas Day and New Year's Day off; on days that defendant worked, Smith and the children would all ride in the car to drop defendant off at a public transit station around 6:00 a.m. Smith and the children would meet defendant at the public transit station to pick him up again at approximately 8:30 p.m.

         Smith explained that A had issues with eating; A would sit with food in front of her and would take large amounts of time to eat small amounts of food and had to be monitored and told to eat, chew, and swallow. A was spanked or sent to a corner for not eating. A was on a nutritional supplement, as had been recommended by a doctor, when defendant and Smith first got together as a couple. However, they did not continue purchasing and giving her that supplement over the course of the relationship. Although A's eating trouble worsened in the months before she died, neither defendant nor Smith started her on the nutritional supplement again. Furthermore, through December and early January, both A and K lost significant amounts of weight. Smith did not monitor to make sure that A was eating.

         Over the few weeks that defendant was employed, Smith essentially stopped taking care of the apartment. She did not do laundry or clean, and generally did not purchase food that had to be cooked. She also began helping her mother with her mother's business several hours a night, going upstairs to her parents' house when defendant was home-on weekends or around 8:30 on weeknights- leaving him alone with the children until she came back between midnight and 2:00 a.m. on weeknights. E was in school and would often sleep upstairs at her grandparents' house. However, the other children did not go to bed early, and defendant would generally put them to bed while Smith was upstairs.

         Discipline in the home included spanking. Defendant and Smith also slapped the children in the mouth, hit them with fists, and "flicked" them in the mouth. Smith and defendant also made A run as a punishment; the last time A was made to run was during the week that she died. According to Smith, there were times that she found marks on the children after leaving them with defendant. She also saw defendant smash K's fingers and toes in the bathroom door. According to Smith, A did not have many bruises on her until December, when more bruises were inflicted.

         A had been toilet trained, but, at least by December, began wetting her pants. When she had accidents, she was punished. Both Smith and defendant gave A bare-bottom spankings for having wetting accidents. A had wetting accidents in the days before she died. Smith punished A and also heard defendant hitting her.

         Smith had scheduled an appointment for A with a doctor during the week before she died. She cancelled the appointment, however, because of the bruises covering A's body. On the Thursday evening before she died, A was lethargic and had been vomiting. She was in the car to pick defendant up that evening; he tried to talk with her but she was not talking, her head was hanging down, and she looked very thin. Smith told defendant that A needed to go to the doctor and that Smith would not take her. Defendant did not do so. A had diarrhea, was coughing, and had hemorrhages in both of her eyes. On Friday, Smith did not bring A along when the family went to pick defendant up from public transit, instead putting her to bed and leaving her at the apartment. The next morning, A was found dead.

         As noted, the jury ultimately found defendant guilty of multiple counts of murder by abuse and ...


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