State v. Bowen

282 P.3d 807, 352 Or. 109, 2012 WL 2454091, 2012 Ore. LEXIS 433
CourtOregon Supreme Court
DecidedJune 28, 2012
DocketCC 02CR0019; SC S058431
StatusPublished
Cited by3 cases

This text of 282 P.3d 807 (State v. Bowen) is published on Counsel Stack Legal Research, covering Oregon Supreme Court primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
State v. Bowen, 282 P.3d 807, 352 Or. 109, 2012 WL 2454091, 2012 Ore. LEXIS 433 (Or. 2012).

Opinion

DE MUNIZ, J.

This capital case is before this court, for a second time, on automatic and direct review of a judgment of conviction and sentence of death. In 2006, in the initial proceeding under ORS 138.012(1), this court affirmed defendant’s convictions for aggravated murder and the imposition of the death penalty, but concluded that the trial court had erred in failing to merge two aggravated murder verdicts and one intentional murder verdict against defendant into a single conviction set out in a single judgment that imposed one sentence of death. State v. Bowen, 340 Or 487, 527, 529, 135 P3d 272 (2006) (Bowen I). On remand, the trial court denied several defense motions — which are now at issue in this proceeding — and entered a corrected judgment. We affirm the trial court’s denial of defendant’s motions and also affirm defendant’s merged conviction and the sentence of death. However, we reverse the corrected judgment and remand for entry of a new corrected judgment, for reasons explained in this opinion.

I. FACTS AND PROCEDURAL BACKGROUND

The facts surrounding the crimes that gave rise to defendant’s convictions are described in Bowen I, 340 Or at 489-92, 525-27, and we need not repeat them in detail here. By way of summary, defendant was indicted in January 2002 for multiple crimes that occurred in December 2001, involving two different victims. The first group of allegations involved victim Christiansen, including two aggravated murder charges (death caused during robbery and death caused during burglary), as well as an intentional murder charge, together with additional crimes that occurred in Christiansen’s home. The second group of allegations involved crimes against victim Dalton on the same day but in a different location. Defendant pleaded guilty to the Dalton allegations and not guilty to the Christiansen allegations. In April 2003, a jury convicted defendant of all the Christiansen allegations, and, at the conclusion of sentencing, the jury answered “yes” to each of the four statutory questions under ORS 163.150(l)(b) as to both counts of aggravated murder. The trial court thereafter imposed a sentence of death on the Christiansen aggravated murder counts, with [112]*112a separate judgment and sentence for each count. Id. at 525. On the Christianson intentional murder charge, the court entered another separate judgment that imposed a 300-month sentence with lifetime post-prison supervision and also imposed sentences on all remaining counts as to both victims. Id. at 527.

On automatic review, this court rejected defendant’s assignments of error relating to various pretrial and guilt-phase issues, and substantive challenges to the penalty phase. Id. at 492-525. However, the court concluded that the trial court had erred under ORS 161.067(1) in failing to merge the aggravated murder verdicts into a single conviction and also in failing to merge the intentional murder verdict with the aggravated murder verdicts, which should have been set out in a single judgment imposing one sentence of death, and that those errors were apparent on the face of the record.1 Id. at 527, 529. The court therefore remanded for entry of a corrected judgment. Id. The specific remand direction that this court provided to the trial court is at issue in this proceeding and is discussed in greater detail later in this opinion.

On remand, at a hearing in March 2010, the trial court denied three defense motions: (1) “motion to follow ORS 138.012,” asserting that the trial court on remand either must sentence defendant to life in prison with the possibility of parole or commence a new sentencing proceeding before a jury; (2) motion for new trial, based on the trial court’s decision to require defendant to wear a stun device during the initial trial; and (3) motion to dismiss, for lack of “speedy sentencing,” based on the amount of time that had elapsed between the issuance of the appellate judgment in Bowen I and the scheduling of resentencing proceedings. The court then entered a new judgment that merged the aggravated murder and murder convictions and imposed a sentence [113]*113of death, but made no other changes to the earlier form of judgment.

On review, defendant assigns error to the trial court’s denial of each motion summarized above and contends that the error in each instance requires reversal of the corrected judgment of conviction and the sentence of death. We address each of defendant’s assignments of error below.

II. DISCUSSION

A. Motion for Resentencing on Remand Under ORS 138.012(2)(a)

1. Scope of Remand

We begin by setting out the statute that forms the basis for defendant’s assignment of error. ORS 138.012 provides, in part:

“(1) The judgment of conviction and sentence of death entered under ORS 163.150(l)(f) is subject to automatic and direct review by the Supreme Court. * * *
“(2) Notwithstanding ORS 163.150(l)(a), after automatic and direct review of a conviction and sentence of death the following apply:
“(a) If a reviewing court finds prejudicial error in the sentencing proceeding only, the court may set aside the sentence of death and remand the case to the trial court.
No error in the sentencing proceeding results in reversal of the defendant’s conviction for aggravated murder. Upon remand and at the election of the state, the trial court shall either:
“(A) Sentence the defendant to imprisonment for life in the custody of the Department of Corrections as provided in ORS 163.105(l)(c); or
“(B) Impanel a new sentencing jury for the purpose of conducting a new sentencing proceeding to determine if the defendant should be sentenced to:
“(i) Death;
“(ii) Imprisonment for life without the possibility of release or parole as provided in ORS 163.105(l)(b); or
[114]*114“(in) Imprisonment for life in the custody of the Department of Corrections as provided in ORS 163.105(l)(c).”

(Emphases added.)

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Related

State v. Silver
391 P.3d 962 (Court of Appeals of Oregon, 2017)
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State v. Bowen
326 P.3d 1162 (Oregon Supreme Court, 2014)

Cite This Page — Counsel Stack

Bluebook (online)
282 P.3d 807, 352 Or. 109, 2012 WL 2454091, 2012 Ore. LEXIS 433, Counsel Stack Legal Research, https://law.counselstack.com/opinion/state-v-bowen-or-2012.