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State v. Taylor

Supreme Court of Oregon

February 7, 2019

STATE OF OREGON, Respondent on Review,
DAVID RAY TAYLOR, Appellant on Review.

          Argued and submitted March 2, 2018

          On automatic and direct review of judgment of conviction and sentence of death imposed by the Lane County Circuit Court CC C201216842 following remand from this court. Charles M. Zennaché, Judge.

          Daniel Bennett, Deputy Public Defender, Offce of Public Defense Services, Salem, argued the cause and fled the briefs for the petitioner on review. Also on the briefs was Ernest G. Lannet, Chief Deputy Defender.

          Timothy Sylwester, Assistant Attorney General, Salem, argued the cause and fled the brief for the respondent on review. Also on the brief were Ellen Rosenblum, Attorney General, Benjamin Gutman, Solicitor General, and Joanna L. Jenkins, Assistant Attorney General.

          Before Walters, Chief Justice, and Balmer, Nakamoto, Flynn, Duncan, Nelson, and Garrett, Justices. [*]

         [364 Or. 365] those incidents, including aggravated murder and was then sentenced to death. The case came to the Supreme Court on automatic and direct review. Held: (1) The factual allegations of the indictment are sufficient to establish that the state properly joined the offenses for trial, and the trial court did not err in refusing to sever the charges on the basis of substantial prejudice; (2) the Court declined to reconsider precedent that the practice of "death qualifying" the jury violated defendant's constitutional right to an unbiased and impartial jury; (3) the trial court did not commit reversible error in refusing to give a concurrence jury instruction on the robbery counts because defendant's theory of defense provided no basis to suspect that a concurrence instruction would have affected the jury's findings of guilt on those counts; (4) the requirement of Oregon's death penalty that the jury find a probability that defendant would commit future criminal violence does not violate the Eighth Amendment to the federal constitution as punishment purely on the basis of a status; (5) it was not unconstitutional for the jury to impose the death penalty during the governor's moratorium on the death penalty; and (6) defendant was not entitled to a mistrial for bias on the part of an alternate juror, which came to light post-trial, because the alternate juror did not participate in the decision-making process and because there was no evidence that she disclosed her bias or information about the case to the jurors who did participate in the decision-making process.

         [364 Or. 366] FLYNN, J.

         A jury sentenced defendant to death after convicting him of aggravated murder, kidnapping, and other crimes against Celestino Gutierrez, as well as multiple offenses arising out of two bank robberies. In this automatic and direct review of his convictions and sentence of death, [1] defendant primarily raises arguments that are contrary to controlling precedent without offering persuasive reasons to depart from that precedent, or arguments that otherwise lack merit. However, some of defendant's assignments of error raise significant issues that this court has yet to expressly address, including: whether the state must expressly allege its theory for joining multiple offenses, whether the governor's moratorium on imposing the death penalty affects the jury's ability to constitutionally consider that punishment, and whether this court should presume that the undisclosed bias of an alternate juror impaired defendant's constitutional right to trial by an impartial jury. We write to address those assignments of error as well as several other significant challenges that defendant raises to the trial court's rulings. Ultimately, having fully considered all of defendant's arguments, we conclude that none of defendant's assignments of error identifies a basis for reversing the judgment, and we affirm.

         I. THE CRIMES

         The crimes at issue in this appeal include the robbery of a Siuslaw Bank branch in Creswell, Oregon; the robbery of a Siuslaw Bank branch in Mapleton, Oregon, two months later; and the kidnapping and murder of a young man in order to steal his car to use in committing the Mapleton bank robbery. In addition to defendant, the participants in these crimes were Toni Baker (defendant's friend), Mercedes (Sadie) Crabtree (Baker's 18-year-old niece), A. J. Nelson (Crabtree's longtime friend), and Wretha Breckenridge (defendant's girlfriend). Both Breckenridge and Crabtree testified in detail about the crimes at [364 Or. 367] defendant's trial-Breckenridge after being given immunity and Crabtree as a condition of her agreement to plead guilty to several offenses, including murder. The facts described below are supported by the testimony of those two witnesses, as well as by other key evidence at trial.

         A. The June 8 Creswell Bank Robbery

         Defendant and Breckenridge, who both lived in Eugene, decided to rob a Siuslaw Bank branch in Creswell, a small town in Lane County. Defendant enlisted Baker and Crabtree to help with the robbery, and the four met at defendant's home in Eugene to discuss the robbery plan. The plan involved defendant using a bicycle to ride up to and away from the bank while Crabtree waited nearby in a get-away vehicle. Defendant planned to use a bicycle that he had spray painted and stored in Breckenridge's garage.

         1. The robbery

         On the morning of June 8, according to the plan, Crabtree drove defendant and the bicycle to an alley near the bank. Crabtree drove a red Dodge Caravan registered to Breckenridge's mother and waited in the van while defendant rode the bicycle to the bank to commit the robbery.

         Defendant carried two guns into the bank-one a small, pink revolver that belonged to Breckenridge, and the other a larger "western style" .44 magnum revolver with a wood grip. He ordered bank employees and customers to get down on the ground. Several of the employees in the bank activated alarms, which triggered an audio recording, and surveillance video also recorded the robbery. Defendant pointed a gun at the bank employees and ordered them to give him the money from their tills. He also demanded their wallets and purses. Defendant ordered everyone in the bank to remain on the ground while he fled on the bicycle with the stolen money. When he reached the alley where Crabtree was waiting, defendant abandoned the bicycle and rode away with Crabtree in the van.

         2. The investigation

         Lane County law enforcement officers identified a red Caravan as likely involved in the robbery, and they [364 Or. 368] publicized that information. They began coordinating with an FBI bank robbery task force, which eventually connected defendant to the Creswell bank robbery, to Breckenridge, to the red Caravan registered to Breckenridge's mother, and to a silver Dodge Intrepid registered to Breckenridge. The task force used that information to obtain a warrant to place GPS tracking devices on both vehicles in late July, and the devices allowed officers to track the movements of those vehicles during the series of crimes that followed.

         B. The August 3 Crimes

         Shortly after the Creswell robbery, defendant broke both of his heels and was incapacitated until late July. When defendant was finally able to walk without crutches, he and Breckenridge drove around in Breckenridge's Intrepid looking for another bank to rob. This time they settled on a Siuslaw Bank branch located in Mapleton, Oregon, another town in Lane County. But two challenges required defendant to form a different plan for this robbery. First, defendant's injuries left him unable to ride a bike and in need of assistance inside the bank. Second, defendant knew that law enforcement officers had publicized a red Caravan's link to the Creswell robbery, so defendant did not want to use the Caravan.

         1. Planning the Mapleton robbery

         Defendant again recruited Crabtree to help with the bank robbery and arranged for her to bring from Portland an older Toyota that he wanted to use for the robbery. Crabtree also brought her friend, Nelson, to assist defendant inside the bank. The plan for the Mapleton robbery was for defendant and Nelson to drive the Toyota to the bank and then abandon it after the robbery at a location where Crabtree would pick them up in the Intrepid.

         On the day planned for the robbery, however, the Toyota broke down on the way to the bank, and defendant abandoned it. He then decided to steal a car and kill the owner so that the owner could not report the theft before defendant had the opportunity to use the car for the robbery. Defendant told Nelson and Crabtree to wait outside a bar [364 Or. 369] near his house and watch for a single man to emerge. He explained that Nelson should stage a fight with Crabtree and then drive away alone. Defendant directed Crabtree to then approach the man and ask for a ride home, to lure him to defendant's house.

         2. The kidnapping and murder[2]

         As directed, Nelson and Crabtree waited outside of the bar to carry out defendant's plan. Around midnight, Gutierrez left the bar alone. Crabtree and Nelson staged their fight, Crabtree convinced Gutierrez to give her a ride, and she directed him to defendant's house. Gutierrez went inside the house to use the bathroom and, when he emerged, defendant and Nelson were waiting for him. Defendant was carrying an assault-type rifle and ordered Gutierrez to get to his knees. Defendant directed Nelson to bind Gutierrez's feet and arms and then directed him to stab and choke Gutierrez. Nelson did so, but Gutierrez remained conscious. Eventually, defendant used a chain to strangle Gutierrez until he died.

         3. The Mapleton bank robbery

         Several hours later, at about 7:00 a.m., defendant drove to Breckenridge's house and told her that they had killed someone and gotten a car, and that she should wait for him to return with the others. Defendant, Crabtree, and Nelson then carried out the Mapleton bank robbery according to their original plan but using Gutierrez's car in place of the abandoned Toyota.

         Defendant and Nelson drove to the Mapleton bank in Gutierrez's car. When they entered the bank, defendant was carrying a long revolver with a wood grip—the .44 magnum—and Nelson was carrying the assault-type rifle. They yelled for the employees to get on the ground, threatened to kill anyone who did not comply, and demanded the employees' wallets. After taking money from the tills, they [364 Or. 370] ordered everyone in the bank to remain on the ground and fled. As would later prove significant, Nelson dropped a bullet, which a teller noticed and collected for police, and some of the money that the tellers handed over included "bait bills"-bills that had been photocopied and had their serial numbers recorded.

         Defendant and Nelson drove from the bank to a location at which Crabtree had arranged to meet them with the Intrepid. Defendant moved the robbery proceeds into the Intrepid and abandoned Gutierrez's car. The three then drove to Breckenridge's house in the Intrepid, where they divided the money, before returning to defendant's house to dispose of the murder evidence.

         C. The Investigation Ties Defendant to the Crimes

         Five days later, law enforcement officers arrested defendant on a warrant for an unrelated crime. At the time of his arrest, defendant was carrying the .44 magnum wood-grip revolver that he had used in both bank robberies. Because defendant had become a primary suspect in the Mapleton robbery and the murder by that time, he was questioned about those crimes.

         Shortly after defendant's arrest, a detective also questioned Breckenridge at her home. Breckenridge provided information about both bank robberies, as well as information about Gutierrez's murder. In a search of Breckenridge's home, officers found the pink handgun that defendant had used in the Creswell robbery. They also found a wallet with defendant's identification and an envelope containing three bundles of cash, including a $20 bill that was a "bait bill" from the Mapleton bank robbery.

         Searches of locations associated with Baker, Crabtree, and Nelson turned up the assault rifle that defendant had used during the murder and a backpack containing other weapons used during that crime. Forensic examination showed that the unfired bullet collected at the Mapleton robbery had been cycled through the assault rifle and that a filet knife had DNA traces consistent with Gutierrez's profile. In addition, Gutierrez's DNA was found at locations inside defendant's house.

         [364 Or. 371] II. PROCEDURAL BACKGROUND

         The state charged defendant in a single indictment with 10 counts relating to the Creswell bank robbery, seven counts relating to the kidnapping and death of Gutierrez, 12 counts relating to the Mapleton bank robbery, and two counts of felon in possession of a firearm-one for the date of the Creswell robbery and one for the date of the other crimes. The trial began with a guilt phase, during which the state presented evidence of the crimes described above to a panel of twelve jurors and several alternate jurors. The jury found defendant guilty of all the offenses charged, except that, on one of the four aggravated murder counts, the jury found defendant guilty of the lesser-included crime of intentional murder.

         The same jury heard evidence during the three days of the penalty phase. At the end of the penalty phase, the jury unanimously answered "yes" to the statutory questions that determine whether the trial court will impose a death sentence, and the trial court entered a judgment imposing that sentence. See ORS 163.150 (describing sentencing process for a defendant found to be guilty of aggravated murder). Among other evidence presented during the penalty phase, the jury learned that defendant had been convicted for abducting and murdering a woman in 1977 and then disposing of her corpse in a rural location; was incarcerated for those crimes until 2004; and then, in 2009, assaulted a woman, choked her, broke one of her ribs, and threatened to kill her. He had been convicted of fourth-degree assault and strangulation based on that incident.

         After the jury returned its verdicts on both the guilt and penalty questions, the court held a sentencing hearing and entered the judgment. That judgment is now before this court for automatic and direct review. ORS 138.052.

         III. ANALYSIS

         On direct review to this court, defendant raises 131 assignments of error. We have reviewed each assignment of error and, as to each, conclude either that the court did not err or that the claimed error does not supply a basis for reversing the judgment. We write to address assignments of [364 Or. 372] error that fall into four categories: (1) pre-trial challenges to the indictment; (2) challenges to guilt-phase rulings of the trial; (3) constitutional challenges to penalty-phase rulings; and (4) a challenge to the trial court's post-judgment ruling denying a mistrial. We reject the remaining assignments of error without written discussion because the issues have already been decided adversely to defendant's position or otherwise lack merit and because further discussion of those issues will not benefit the public, the bench, or the bar.

         A. Pre-trial Challenges to the Indictment[3]

         Prior to trial, defendant raised several challenges to the indictment based on the limits that ORS 132.560(1) places on the state's ability to join more than one offense in ...

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