State v. Turnidge

364 May 5, 2016 No. 29

IN THE SUPREME COURT OF THE

STATE OF OREGON

STATE OF OREGON,

Respondent,

v.

JOSHUA ABRAHAM TURNIDGE,

Appellant.

(CC 08C51758; SC S059155)

On automatic and direct review of the judgment of convic-

tion and sentences of death imposed by the Marion County

Circuit Court.

Thomas. M. Hart, Judge.

Argued and submitted June 17, 2015.

Joshua B. Crowther, Chief Deputy Defender, Salem,

argued the cause for appellant. With him on the brief was

Peter Gartlan, Chief Defender, Office of Public Defense

Services.

Susan G. Howe, Assistant Attorney General, Salem,

argued the cause and filed the brief for respondent. With

her on the brief were Ellen F. Rosenblum, Attorney General,

Anna M. Joyce, Solicitor General, David B. Thompson, and

Timothy A. Sylwester, Assistant Attorneys General.

Before Balmer, Chief Justice, and Kistler, Walters,

Landau, Brewer, and Baldwin, Justices, and Linder, Senior

Justice pro tempore.*

LINDER, S. J.

The judgment of conviction and sentences of death are

affirmed.

______________

* Nakamoto, J., did not participate in the consideration or decision of this

case.

Cite as 359 Or 364 (2016) 365

366 State v. Turnidge (S059155)

LINDER, S. J.

Defendant and his father were jointly charged and

tried on 10 counts of aggravated murder and other felonies

arising from their involvement in a bombing at a bank that

killed two law enforcement officers and injured another law

enforcement officer and a bank employee. A jury found them

each guilty on all counts and determined that sentences of

death should be imposed. The trial court thereafter entered

separate judgments of conviction for defendant and his

father, each of which included two sentences of death, one for

each murder victim. On direct review under ORS 138.012,

defendant raises 151 assignments of error, supplemented by

additional pro se assignments, relating to the pretrial and

guilt phases of his trial. He requests reversal of the judg-

ment of conviction and remand for entry of a judgment of

acquittal; he also, implicitly in the alternative, requests an

order for a new trial. We affirm the judgment of conviction

and sentences of death.1

I.  FACTS AND PROCECURAL BACKGROUND

In setting out the facts, we begin with those relat-

ing to the bombing itself, followed by information learned

from the ensuing investigation. We then describe the result-

ing charges and the trial. Because a key issue relating to

the evidence as a whole involves the trial court’s denial of a

motion for judgment of acquittal, we set out the facts in the

light most favorable to the state, including all reasonable

inferences that a jury could draw from those facts. State

v. Cunningham, 320 Or 47, 63, 880 P2d 431 (1994), cert

den, 514 US 1005 (1995); see also State v. Brown, 310 Or

347, 350, 800 P2d 259 (1990) (because jury found defen-

dant guilty, in assessing sufficiency of evidence relating to

motion for judgment of acquittal, court viewed evidence in

light most favorable to state). We describe additional facts

later in this opinion as they relate to particular assign-

ments of error.

1

In a separate opinion issued today, we also affirm the judgment of convic-

tion and sentences of death imposed against defendant’s father. State v. Turnidge

(S059156), 359 Or 507, ___ P3d ___ (2016).

Cite as 359 Or 364 (2016) 367

A.  The Bombing

Shortly before 10:30 a.m. on Friday, December 12,

2008, a man called a Wells Fargo Bank in Woodburn and

told the teller who answered, “If you value your life and the

life of your employees, you need to * * * get out because I’m

going to kill you, you * * * are all going to die.” The caller told

the teller to have all employees leave the bank and check

the outside garbage area, where they would find a plastic

bag containing a cell phone; he explained that he would

then call that phone to tell them what to do next. He also

stated either that he had called or was going to call a neigh-

boring bank, West Coast Bank, with similar instructions.2

The caller spoke calmly, had no accent, and—in the teller’s

estimation—was likely in his thirties or forties.

The teller called 9-1-1, and detectives from the

Woodburn Police Department responded. The detectives

checked the outside garbage area and found several large

black plastic trash bags and a zipper-style bag containing a

cell phone. Concerned that the phone might be an explosive

device, they called for bomb technicians. Trooper William

Hakim from the Oregon State Police and an FBI special

agent responded; they examined and x-rayed the phone and

confirmed that it was not an explosive device. Another law

enforcement officer then took the phone to the Woodburn

Police Department, and Trooper Hakim and the FBI special

agent left the scene.

Because the caller had mentioned the neighboring

West Coast Bank, a detective called dispatch and confirmed

that that bank had reported no threatening phone call.

Other detectives on the scene spoke with West Coast Bank

employees and checked that bank for suspicious packages.

In walking the exterior of West Coast Bank, one detective

noticed a large metal box among some bushes, within one

to a few feet of an exterior bank window, on a side of the

bank that faced a sidewalk and a residential street. The

box was painted green and looked like a landscaping utility

box or part of a sprinkler system. It was almost square or

2

West Coast Bank was located directly to the east of Wells Fargo Bank. Both

banks faced Highway 214 in Woodburn, near an Interstate 5 interchange.

368 State v. Turnidge (S059155)

cube-like in shape, measuring about 11 and 1/2 inches deep

by 11 inches wide, and 15 inches high, with a nonopening

“lid” that created an appearance of a box top. The detective

rotated the box 180 degrees, thinking that, if it were a util-

ity box, it would not rotate. As the box rotated, an attached

wire popped out from underneath it. The wire was painted

the same green color and appeared to have been buried in

bark dust. In addition to rotating the box, the detective held

it by its lidded top and shifted the box slightly.

In response to police questions about whether the

box was recently placed or already had been in that location,

a bank employee, Perkett, and the bank branch manager,

Taylor, each looked at the box. Perkett lifted it slightly, and

Taylor tipped it to a 45-degree angle. A welded, uneven grid

with openings to the inside, fashioned from flat stock metal,

crossed the underside. Viewed from underneath, looking

through that grid, the box appeared mostly hollow. With the

box tipped, Taylor could see wires inside the hollow area, as

well as what looked like a secured motorcycle battery. He

also saw a toggle switch on the outside of the box. Taylor

and Perkett told the detective that they had not seen the

box before, and Perkett then tried to reach the bank’s land-

scaper who had worked at the bank the previous Sunday.

After several hours, the landscaper arrived and said that

the box was not his and had not been there before, which

prompted law enforcement to treat the box as a suspicious

device. They photographed it, recalled the bomb squad, and

Trooper Hakim again responded. While Trooper Hakim

was assessing the device, Chief Scott Russell and Captain

Thomas Tennant from the Woodburn Police Department—

who had been monitoring the situation throughout the

day—arrived to assist as needed.

Trooper Hakim inspected the device, including

turning it upside down and x-raying it, but the x-ray was not

conclusive. He ultimately concluded that the device—which,

as noted, appeared to be hollow except for the secured motor-

cycle battery inside—was a “very good hoax device.”3 So that

3

Several witnesses testified that the vast majority of suspicious devices

placed at banks nationwide prove to be hoax devices. A hoax device resembles a

real bomb, but does not contain any explosive filler.

Cite as 359 Or 364 (2016) 369

it could be taken into evidence for investigatory purposes,

Trooper Hakim decided to dismantle the device to ensure

that it was safe.

By then, it was around 5:00 p.m. and was growing

dark, and the weather was cold and rainy. To get out of the

weather and darkness, Trooper Hakim moved the device

inside West Coast Bank, which by then had closed to custom-

ers. All employees, except Taylor and Perkett, left the bank;

meanwhile, various law enforcement officers moved in and

out of the bank. Eventually, only Perkett, Taylor, Trooper

Hakim, Chief Russell, and Captain Tennant remained

inside the bank, with Captain Tennant assisting Trooper

Hakim with the device, which had been placed on the floor

with the grid side face-up, and Chief Russell observing

from nearby. Taylor went into a conference room to take an

incoming phone call, and Perkett, who was standing in the

same open area as the others, prepared to leave.

Trooper Hakim and Captain Tennant tried with-

out success to remove bolts that appeared to hold the lid on

the device, and then Trooper Hakim used a crowbar to pry

on the lid. Hitting either the device or the crowbar with a

hammer, he succeeded in slightly moving the lid. He stated,

“There, I got it.” A second or so later, the device exploded,

causing extensive damage to the immediate area inside the

bank and violently projecting shrapnel through the win-

dows, walls, and roof, and outside onto the road and into a

nearby parked car and a residence.

Other law enforcement officers working outside the

bank rushed inside. Trooper Hakim and Captain Tennant

had suffered horrific injuries, and were dead. Chief Russell

was alive, but his legs were nearly severed, and he was

bleeding profusely from those and other injuries. Perkett

suffered a wound to her leg, but was able to walk out of the

bank. Taylor, who had been in the conference room, was

not injured. Responding law enforcement officers called for

emergency medical help for Chief Russell, who was immedi-

ately transported to the hospital. He underwent emergency

surgery, which resulted in amputation of his right leg. He

remained in critical condition for several days due to his

multiple injuries, but survived.

370 State v. Turnidge (S059155)

B.  The Investigation

Immediately after the bombing, state and federal

law enforcement focused the investigation on the cell phone

discovered outside Wells Fargo Bank, the preblast photo-

graphs of the device—by then, known to be a bomb—and

postblast evidence gathered from West Coast Bank. On the

night of the bombing, investigators determined that the cell

phone was a prepaid “TracFone” and had been used to call

to another TracFone. Various records reviewed that same

night revealed that both phones had been purchased at

a Walmart and had been activated via the internet early

that same morning, at 4:22 a.m. and 4:30 a.m., from a Best

Western hotel in north Salem. Records also revealed that

the second TracFone (which was never recovered) had been

used to place the call to Wells Fargo Bank and to attempt to

also place a call around the same timeframe to West Coast

Bank. The next day, Saturday, investigators determined

that the phones had been purchased at a Walmart in Bend

on November 26, 2008, and that airtime cards for them had

been purchased at a particular Walmart in Salem shortly

after 9:00 a.m. on December 11. Investigators viewed video

surveillance from the Salem Walmart showing a Caucasian

male purchasing the airtime cards and then leaving the

parking lot in an older, light-blue small Chevrolet pickup

truck, possibly a LUV model. They were able to make out

some, but not all, of the truck’s license plate numbers.

Also on Saturday, the day after the explosion, and

continuing into Sunday, investigators searched various data-

bases to develop a list of registered small Chevrolet pick-

ups of similar age, with similar plate numbers. The search

returned a Chevrolet pickup registered to defendant’s par-

ents. After retrieving a Department of Motor Vehicles (DMV)

photograph of defendant’s father, Bruce Turnidge, investi-

gators determined that he was not the person in the sur-

veillance footage. They then searched the database for indi-

viduals associated with Bruce. That led them to defendant.

Based on his DMV photograph and identifying information,

defendant (unlike Bruce) matched the appearance, height,

weight, and apparent age of the person in the video footage.

Investigators also obtained video surveillance images from

Cite as 359 Or 364 (2016) 371

the Bend Walmart and confirmed that the person who pur-

chased the TracFones on November 26 resembled the same

person in the Salem Walmart footage, who in turn resem-

bled defendant. Investigators obtained a series of addresses

from their searches, including a home in north Salem on

Nolan Lane.

On Sunday, sometime after 3:30 p.m., state and fed-

eral law enforcement officers drove by the Nolan Lane prop-

erty and set up a distant perimeter. An older blue Chevrolet

LUV pickup truck, which matched the truck from the Salem

Walmart surveillance footage, was parked in the driveway.

A detective from the Keizer Police Department and a lieu-

tenant from the Oregon State Police approached the home

and knocked on the door; defendant answered and spoke

with them. Among other things, defendant stated that he

had learned about the bombing from the news and had not

been involved. Following a consent search of the pickup

and further conversation—during which defendant stated

that he had been in Bend and Medford on December 12,

spoke about a biodiesel business that he had with his

father, Bruce, and denied any involvement in the bombing—

defendant was placed under arrest and transported to the

Marion County Sheriff’s Office.

Meanwhile, investigators learned of another address

of interest, on Potts Road in rural Jefferson, where Bruce

rented a home and out-buildings that included a garage, an

open-bay pole barn, and a closed-bay shop. Within two hours

of defendant’s arrest, several law enforcement officers went

to that address. Bruce’s wife (defendant’s mother) consented

to a search of the house. Officers located Bruce in a room

above the garage accessible from an outside entrance. They

and Bruce moved to the house, where Bruce spoke at length

with an FBI special agent about his political views. Bruce

and his wife eventually were asked to leave the property for

the night, and a search warrant was obtained.

The next day and continuing for several days, law

enforcement executed the search warrant at the Potts Road

property. Among other things, investigators particularly

looked for items consistent with components of the bomb that

were visible in the preblast photographs or that had been

372 State v. Turnidge (S059155)

otherwise discovered during the postblast investigation, as

well as any items relating to the TracFones. Inside the house,

investigators discovered and seized a desktop computer and a

laptop computer, and, from different trash cans, a TracFone

brochure and other papers. Inside the pole barn, which defen-

dant and Bruce used as a shop for their biodiesel business,

investigators found tools and other items consistent with

welding and metal fabrication work that could have been

used to construct the bomb, and electrical connectors con-

sistent with connectors visible in the preblast bomb photo-

graphs. They also found two “servo” motors, and remnants of

a third, which is a type of motor used in remote-control toys;

investigators had determined by that point that the bomb

had contained such a motor. The floor in the metalworking

area of the pole barn displayed cut marks consistent with the

dimensions of the bomb from the preblast photographs. The

pole barn appeared to have been thoroughly cleaned.

Outside the pole barn, investigators discovered

a burn pile containing wires, nuts, and L-shaped metal

pieces that all resembled components of the bomb, as well

as a vehicle charger used to charge electronic devices, a

cell phone battery, computer parts, other metallic objects,

and cans of spray paint. Farther away, at an outside picnic

area and along a riverbank, investigators found an empty

plastic container for Tovex, which is a slurry-type, power-

ful “high-explosive.”4 They also found sheets of metal and

plywood; flat stock metal; a spool of wire; wire crimps; a

like-new soldering kit; and an electrical connector box con-

taining wire strippers. The plywood sheet bore grinding

marks and welding splatters, and had an outline of green

paint that was similar in size and color to the bomb pictured

in the preblast photographs. Investigators also found angle

iron, expanded metal, and wire all similar to components

of the bomb. In a shallow area of the river nearby, a dive

team found similar metal pieces; another Tovex container;

a slurry-like substance adhered to a rock that was consis-

tent with Tovex; fuse-type blasting caps; a partially burned

4

A “high explosive” is a higher-velocity explosive (in contrast to slower-

velocity explosives such as gun powder and other powders) that requires a deto-

nator to initiate. Tovex is typically used for moving earth, such as for quarrying

and blasting.

Cite as 359 Or 364 (2016) 373

cardboard blasting cap box; computer and electronic compo-

nents; an antenna resembling a radio antenna; and a sheet

of metal that had a squared-off section cut out of it, similar

in dimensions to the paint outline on the plywood and to

the bomb pictured in the preblast photographs. From the

appearance and condition of some of the items—for exam-

ple, the blasting cap box—they did not appear to have been

exposed to the weather or river water for a significantly long

period of time. Subsequent paint and metallurgy analysis

showed that some of the materials recovered from the Potts

Road property—including various wires and the plywood

and various pieces of metal (painted and otherwise)—were

consistent in color, pigment, and chemical composition with

the components of the bomb recovered from the blast scene;

some of the seized and recovered metal also was determined

to have been made with the same manufacturing tooling.

Based on evidence seized from the Potts Road property,

Bruce was arrested on Tuesday, December 16.

In addition to the Potts Road search, investigators

searched defendant’s home at Nolan Lane, where they seized

a receipt for two laptop computers that were different from

the two computers seized from the Potts Road property. The

make and model of the listed laptops later were determined

to contain the same component parts as the computer parts

found in the river and in the burn pile.

From evidence seized during the searches and

recovered from West Coast Bank, together with fragments

of bomb components recovered during the autopsies of

Captain Tennant and Trooper Hakim, law enforcement

investigators learned more about the bomb components

and searched for related purchases. They learned that, on

November 26, about six minutes after defendant had been

recorded on a surveillance video from the Bend Walmart

purchasing the TracFones, as well as canned spray paint,

a man about the same age as defendant purchased two

toggle switches—of the same type visible on the outside

of the bomb—from a neighboring auto parts store. Also

on that same day, a little more than an hour before those

purchases, someone purchased a servo motor—of the same

type from which fragments had been discovered at the

374 State v. Turnidge (S059155)

postblast scene—at a hobby shop in Bend. Investigators fur-

ther learned from phone records that defendant had been in

Bend that day and had called Bruce several times, includ-

ing within eight minutes of the purchase of the servo motor.

And, on December 1, Bruce purchased a soldering kit—like

the one found near the river—from a store in Brooks, and

someone named Bruce purchased a battery—matching the

type and brand of the battery visible in the bomb—from a

store in Albany.

Using the preblast photographs and analyzing

the various components recovered from the blast scene

and from the autopsies of Captain Tennant and Trooper

Hakim, investigators reconstructed the bomb to determine

the nature of its design. From the reconstructed bomb,

they determined that the real bomb had been a complex

one, constructed with scrap-type metal pieces that had

been welded, bolted, and otherwise fastened together. As

part of its design, the bomb had been mostly hollow, with

solid metal sides and what appeared to be a metal lidded

top, and then with the flat stock grid crossing the under-

side. When the bomb was tipped “upside down,” with the

flat stock grid facing upwards, a 12-volt battery had been

visible in the hollow area, secured to the grid. Also when

the bomb was in that position, farther behind the battery

at the bottom of the hollow area, a thick piece of metal was

visible, running the same width and depth dimensions as

the bomb’s metal top. Investigators described that thick

metal piece as a “shelf” inside the bomb’s structure.5 Two

electrical connectors had been attached to a corner of that

metal piece, and wire had run from the battery to those

connectors. Investigators determined that, behind that

thick metal interior “shelf,” several key components had

been concealed: a servo motor; two AA batteries; a second

internal toggle switch connected to the servo; three to five

pounds of the explosive Tovex; and a thick piece of steel

that may have encased the explosive. They also surmised

5

When the device was tipped “upside down,” with the flat stock grid facing

upwards, and one looked into the hollow area of the device through the grid, the

thick piece of metal appeared to be the device’s interior bottom or “floor.” When

the device was turned right-side-up, with the grid facing down, the thick piece of

metal would have been near or part of the lidded top.

Cite as 359 Or 364 (2016) 375

that the “shelf” had concealed both a receiver for the servo

and a detonator for the explosive, such as a nonelectric,

fuse-type blasting cap.

From the various internal components—particularly,

the servo motor, which would have operated to accept a

remote command—investigators determined that the bomb

was designed to detonate remotely, from a distance of several

hundred feet to possibly a few miles. Investigators further

determined that the bomb ran on two circuits that required

both toggle switches to be in the “on” position for detonation

to occur. The internal toggle switch, if flipped to the “on”

position, initiated a detonator. The external switch, how-

ever, operated as a safe-arm switch so that the bomb could

be safely handled. Specifically, the two switches worked

together in this way: The servo motor, when it received a

remote signal, would flip the internal toggle switch, which

in turn would initiate the detonator, which in turn would

detonate the explosive, depending on the position of the safe-

arm switch. If the safe-arm switch were “off,” then flipping

the internal switch would have no effect. If, however, the

safe-arm switch were “on,” then the detonator would be trig-

gered, and the bomb would explode.

Investigators theorized that, when the bomb was

planted outside the bank, the safe-arm switch was placed

in the “on” position. Then, while Trooper Hakim and

Captain Tennant worked to dismantle the bomb, a stray

radio signal operating on the same radio frequency range

as a receiver inside the bomb—such as a signal sent from a

nearby CB radio or garage door opener—may have signaled

the receiver and servo motor to flip the internal switch to

“on,” which initiated the detonator and triggered the explo-

sion. Evidence at trial also suggested alternative scenarios:

(1) in handling the bomb before the explosion, someone on the

scene inadvertently could have flipped the external safe-arm

switch to the “on” position, which either would have set the

groundwork for the explosion once the internal switch was

flipped, or, if that internal switch already had been flipped

somehow, immediately would have caused the bomb to det-

onate; or (2) an interior component itself—such as the servo

motor, the internal switch, or a detonator—might have been

376 State v. Turnidge (S059155)

triggered during efforts to dismantle the bomb.6 Regardless

of the means of detonation, the explosive inside the bomb

was capable of causing death and destruction. As originally

placed at West Coast Bank, the metal grid was at the base

of the bomb, on the ground, while the area concealed by the

“shelf,” where the explosive was contained, was elevated off

the ground. That elevated positioning of the explosive ren-

dered the bomb more dangerous, because explosives typi-

cally cause greater damage when they explode above rather

than on the ground. Also, had the bomb exploded where it

was originally planted outside the bank, the damage and

destruction likely would have been even more extensive,

because the blast would not have been contained by any

structure.

In seeking to determine defendant’s and Bruce’s

whereabouts on December 12, investigators focused on tele-

phone carrier and cell tower records for their personal cell

phones, together with records showing the TracFone acti-

vations at the Best Western in north Salem, which offered

unsecured wireless service accessible from an exterior park-

ing lot. The carrier and cell tower records revealed a call and

travel pattern establishing that, sometime after 1:40 a.m.

on December 12, defendant left north Salem and traveled

south to Jefferson, and then, by 3:56 a.m., both defendant

and Bruce travelled away from Jefferson, separately but

in the same direction, back north toward Salem, arriving

by 4:01 a.m. in the general vicinity of the Best Western.

The TracFones then were activated at the Best Western at

4:22 a.m. and 4:30 a.m.

After the TracFones were activated, there was

about a three-hour time break in the phone records—during

which investigators theorized that defendant and Bruce

traveled together, north to Woodburn, and planted the bomb

6

In its case-in-chief, the state relied principally on the stray-signal theory.

After defendant and Bruce presented evidence contradicting that theory in their

defense case, the prosecutor did not rely on that theory in his closing argument

to the jury. Instead, the prosecutor focused on the evidence connecting defendant

and Bruce to the construction, design, and placement of the bomb, emphasizing

the state’s theory that the bomb was designed and intended to be lethal, and was

planted at the bank for the purpose of killing and injuring others, regardless of

the specific force that caused it to detonate.

Cite as 359 Or 364 (2016) 377

at West Coast Bank. Beginning at 7:19 a.m., both defendant

and Bruce either placed or received calls from around an

Interstate 5 rest stop near Wilsonville, north of Woodburn.

Then they traveled south, where an 8:40 a.m. call placed

them near Woodburn. The call to Wells Fargo Bank on one

of the TracFones occurred at 10:19 a.m., from the Woodburn

area; within about an hour of that call, defendant and

Bruce—still together—made calls to others on their cell

phones from Brooks, just south of Woodburn. After leaving

Brooks, they apparently each drove separately to Jefferson,

arriving at the pole barn on Potts Road after 11:00 a.m.,

where they spoke to others working there. They then visited

a mutual acquaintance in Salem at about noon. Eventually,

each returned home, with defendant’s last recorded call to

Bruce before the bombing occurring at 2:33 p.m. The next

recorded call between the two occurred about an hour after

the bombing, at 6:17 p.m., at which time each appeared to

be at his home. Investigators also determined that Bruce’s

large white pickup truck had been parked at West Coast

Bank within one to two weeks before the bombing and that

that truck had been seen travelling to the pole barn on the

Potts Road property around 2:00 a.m., on the morning of the

bombing. Finally, investigators determined that someone

driving a blue Chevrolet LUV pickup truck had purchased

gas in Woodburn in the early mid-morning hours on that

same day and then had remained parked at the gas station

for more than five minutes, with the driver looking in the

general direction of West Coast Bank.

As to defendant’s and Bruce’s respective reactions

and demeanors on the evening of and during the days after

the bombing, investigators learned from various witnesses

that neither acted unusually. Each continued with his ordi-

nary activities and did not display any noticeable change in

behavior or affect.

As part of the investigation, law enforcement

attempted to determine a possible motive for defendant and

Bruce to have built and planted the bomb. That led them to

evidence that defendant and Bruce had planned to rob a bank.

Specifically, the FBI analyzed a handwritten paper retrieved

from a trash can at the Potts Road property—which, based

378 State v. Turnidge (S059155)

on handwriting analysis, likely had been written by defen-

dant. They determined that that paper contained a series

of numbers that ultimately calculated the weight and mon-

etary total of particular physical counts of bills—for exam-

ple, the weight of $500,000 worth of $20 or $50 bills—and

how much various amounts would weigh for the purpose of

transporting the bills in 100-pound bags. On the computers

seized from the Potts Road property, investigators also found

evidence of fairly recent internet searches for “monetary con-

version,” offshore bank accounts, currency rates, and foreign

currency exchange rates. And investigators learned from

friends and associates that defendant and Bruce in the past

had spoken hypothetically about bank robbery, with Bruce in

particular frequently describing different bank robbery sce-

narios, including the use of explosives or fire as diversions

or otherwise, and the use of remote controlled cars to deliver

explosives. Bruce, but not defendant, also had spoken hypo-

thetically many years before about killing police by various

means, including detonating a bomb during a police memo-

rial. A friend of defendant’s also relayed that, many years

earlier, defendant had told him that defendant had called in

a bomb threat to a Woodburn bank located in the same area

as the banks involved in this case. Finally, at the time of the

bombing, both defendant and Bruce were having personal

financial troubles, and their biodiesel business was not gen-

erating any profit.

Investigators also learned from various of defen-

dant’s and Bruce’s family members, friends, and acquain-

tances that they viewed the government—including law

enforcement—as over-reaching, requiring ordinary citizens

to respond in possibly violent ways. As an example, defen-

dant’s former fiancée had observed defendant and Bruce

react “jubilant[ly]” to news of the 1995 Oklahoma City bomb-

ing, which they thought was an appropriate citizen response

given earlier events at Ruby Ridge, Idaho, and Waco, Texas.

Relatedly, during a hunting trip in early November 2008,

defendant and Bruce had agreed that the upcoming presi-

dential transition likely would infringe on their right to bear

arms. More generally, for his part, defendant over the years

had expressed in intense terms to friends and acquain-

tances his dislike of police and his distrust of banks.

Cite as 359 Or 364 (2016) 379

Investigators learned other relevant details about

both defendant and Bruce. For example, both were skilled

welders and had experience working with electronics, with

defendant having more electronics experience than Bruce.

Both had experience using remote control devices, including

experience on defendant’s part in connecting servo motors

to different control surfaces to make them function. And

both had experience using explosives; Bruce in particular

was experienced in using explosives effectively for different

objectives. Investigators also learned that, at some point

within three to four months before the bombing, two indi-

viduals resembling defendant and Bruce had spoken with a

store employee in Jefferson about blowing up stumps from a

remote location; the three had discussed that, with remote

detonations, care should be taken to avoid crossing remote

signals with CB radio signals. Finally, investigators learned

that defendant—but not Bruce—was experienced in using a

computer and owned a laptop (of the same type found at the

river at Potts Road) that automatically connected to unse-

cured wireless internet networks.

As noted, defendant told investigators, as well as

others, that he had driven to Bend and other Oregon cities on

December 12; he also discussed with friends, acquaintances,

and others—after his arrest—alternative theories for the

bombing and that police had wrongly arrested him. He later

testified at trial, however, that he had been driving with

Bruce in the Willamette Valley area from the early morn-

ing hours on December 12 until midday, although he offered

personally exculpatory explanations for each of the critical

time periods—such as activation of the TracFones, place-

ment of the bomb, and calling Wells Fargo Bank. Overall,

his testimony was to the effect that he had no knowledge of

any planning, bomb construction or placement, or attempted

robbery. Rather, according to defendant’s testimony, Bruce

alone had planned, built, and planted the bomb; activated

the TracFones; and called Wells Fargo Bank. As for the pur-

chases of the TracFones and spray paint, the airtime cards,

and the toggle switches, defendant maintained that he had

purchased those items at Bruce’s request, with no knowl-

edge of how Bruce intended to use them. Defendant denied

purchasing the servo motor.

380 State v. Turnidge (S059155)

C.  The Charges and Trial

In separate, identical indictments, the state jointly

charged defendant and Bruce with aggravated murder (10

counts each, including four counts of aggravated felony

murder),7 attempted aggravated murder (three counts), con-

spiracy to commit aggravated murder, first-degree assault,

second-degree assault, unlawful manufacture of a destruc-

tive device, and unlawful possession of a destructive device.

The trial court conducted a joint guilt-phase trial, at which

the state presented the evidence generally summarized

above. Defendant took the stand in his defense and tes-

tified to the effect, also as noted above, that Bruce alone

had planned a bank robbery, built and planted the bomb

at West Coast Bank, and placed the life-threatening call to

Wells Fargo Bank. Unlike defendant, Bruce did not testify

at trial. Defendant, together with Bruce, also introduced

evidence attempting to show that—in assessing the nature

of the bomb and its destructive potential—law enforcement

officers had acted negligently or otherwise had deviated

from standard operating procedures. Defendant and Bruce

relatedly attempted to show that the bomb had exploded as

a result of law enforcement manipulation.8

At the conclusion of the joint guilt-phase trial, a jury

found both defendant and Bruce guilty on all counts. After sep-

arate penalty-phase proceedings under ORS 163.150(1)(a),

the jury unanimously answered “Yes” to the four questions

set out in ORS 163.150(1)(b), as to both defendant and to

7

The state alleged the same five theories of aggravated murder as to each

defendant—with duplicate counts for each murder victim, resulting in 10 counts

total—based on different statutory aggravating circumstances, as follows:

•  Two or more deaths in the same criminal episode, ORS 163.095(1)(d);

•  Death of a police officer, ORS 163.095(2)(a)(A);

•  Death by explosive device, ORS 163.095(2)(c);

•  Felony murder, criminal mischief (explosive device), ORS 163.095(2)(d),

ORS 163.115(1)(b)(B); and

•  Felony murder, robbery, ORS 163.095(2)(d), ORS 163.115(1)(b)(G).

8

At trial, both defendants made extensive efforts to persuade the jury that

law enforcement officers had mishandled the bomb in several respects. We do not

describe that evidence in detail, because the jury rejected it, and our standard of

review views the evidence in the light most favorable to the jury’s verdict.

Cite as 359 Or 364 (2016) 381

Bruce.9 For both defendant and Bruce, the trial court merged

their individual aggravated murder convictions relating to

each murder victim and then entered identical judgments,

one against defendant and one against Bruce, setting out

two convictions for aggravated murder (one for Captain

Tennant and one for Trooper Hakim), and two sentences of

death.

As noted, defendant raises 151 assignments of error

that relate to both the pretrial and guilt phases (but not

the penalty phase) of his trial. In a supplemental pro se

brief, defendant raises four additional assignments of error.

Below, we address the assignments that merit discussion.

II.  PRETRIAL PHASE

A.  Motion to Sever Trials (Assignment Nos. 1-5)

As just described, defendant and Bruce were

charged jointly, in identical indictments, with identical

offenses. Before trial, defendant moved to sever his trial

from Bruce’s trial. The state objected, and the trial court

denied the motion. During trial, in response to certain evi-

dentiary rulings that defendant viewed as unfavorable to

his defense, defendant responded by, among making other

motions, renewing his motion to sever, each time summarily

and each time unsuccessfully. On review, defendant argues

that the trial court’s rulings were error under ORS 136.060

and the Sixth and Fourteenth Amendments to the United

States Constitution.10 As we explain below, we conclude that

90

ORS 163.150(1)(b) provides:

“Upon the conclusion of the presentation of the evidence, the court shall

submit the following issues to the jury:

“(A)  Whether the conduct of the defendant that caused the death of the

deceased was committed deliberately and with the reasonable expectation

that death of the deceased or another would result;

“(B) Whether there is a probability that the defendant would commit

criminal acts of violence that would constitute a continuing threat to society;

“(C)  If raised by the evidence, whether the conduct of the defendant in

killing the deceased was unreasonable in response to the provocation, if any,

by the deceased; and

“(D)  Whether the defendant should receive a death sentence.”

10

Defendant also argues that the trial court’s rulings violated his right to an

impartial jury, as guaranteed by Article I, section 11, of the Oregon Constitution.

382 State v. Turnidge (S059155)

the trial court did not err in denying defendant’s motions to

sever.

Severance of trials for jointly charged defendants is

governed by ORS 136.060, which provides:

“(1)  Jointly charged defendants shall be tried jointly

unless the court concludes before trial that it is clearly inap-

propriate to do so and orders that a defendant be tried sep-

arately. In reaching its conclusion the court shall strongly

consider the victim’s interest in a joint trial.

“(2)  In ruling on a motion by a defendant for sever-

ance, the court may order the prosecution to deliver to the

court for inspection in camera any statements or confes-

sions made by any defendant that the prosecution intends

to introduce in evidence at the trial.”

(Emphasis added.) Central to the parties’ arguments on this

issue are their different positions on what circumstances

render a joint trial “clearly inappropriate” under that stat-

ute. According to defendant, the standard is not a partic-

ularly demanding one. The statute does not, for example,

expressly require a showing that a joint trial would create

a risk of “substantial prejudice” or would give rise to evi-

dentiary or other issues at trial that would violate a statu-

tory or constitutional provision. Under that less-demanding

standard, defendant argues that a joint trial was “clearly

inappropriate” here because he and Bruce advanced “incon-

sistent defenses,” the state relied on evidence that was not

“mutually admissible” against both of them, and some evi-

dence admitted against Bruce could easily have tainted the

jury’s view of him as well.

The state, relying on State v. Turner, 153 Or App

66, 956 P2d 215, rev den, 327 Or 317 (1998), and other Court

of Appeals cases interpreting ORS 136.060(1), responds

that “clearly inappropriate” is a heightened standard that

is satisfied only if a joint trial would violate a statutory or

Defendant made no specific argument about Article I, section 11, to the trial

court, however, and, on review, defendant neither cites any authority nor makes

any developed argument for the proposition that Article I, section 11, requires

jointly charged defendants to be tried separately. For those reasons, we do not

address defendant’s Article I, section 11, argument.

Cite as 359 Or 364 (2016) 383

constitutional provision, and not if there is merely a poten-

tial for prejudice to one or more defendants. Consequently,

according to the state, that standard is not satisfied by the

kinds of problems that defendant identifies, such as incon-

sistent defenses or the state’s use of evidence that is not

mutually admissible against both defendants.11

We begin by construing the “clearly inappropriate”

standard that ORS 136.060(1) establishes. We then examine

whether, on this record, the trial court erred by concluding

that the problems that defendant identified did not, pursu-

ant to that standard, require severance.

In construing a statute, we examine the text of that

statute in context and, where appropriate, consider legisla-

tive history and pertinent canons of statutory construction.

State v. Gaines, 346 Or 160, 171-72, 206 P3d 1042 (2009).

The term “clearly inappropriate” is not statutorily defined.

Neither is it a legal term of art. We therefore look to its

everyday meaning. See Comcast Corp. v. Dept. of Rev., 356

Or 282, 295-96, 337 P3d 768 (2014) (contrasting approach

for interpreting plain meaning of legal terms versus lay

terms). The words “clearly” and “inappropriate” do have

fairly “plain, natural, and ordinary” meanings. See PGE v.

Bureau of Labor and Industries, 317 Or 606, 611, 859 P2d

1143 (1993) (describing meaning to be given to words of

ordinary usage). “Clearly” means “without doubt or ques-

tion.” Webster’s Third New Int’l Dictionary 420 (unabridged

ed 2002). “Inappropriate” means, of course, “not appropri-

ate,” id. at 1140, which is the opposite of “appropriate,” which

means “specially suitable” or “proper.” Id. at 106. As a mat-

ter of plain text, then, the “clearly inappropriate” standard

requires a determination that, without doubt or question,

a joint trial would not be suitable or proper in a particular

instance.

11

The state also argues that defendant failed to preserve his current argu-

ments because he did not argue in the trial court that the Court of Appeals cases

interpreting ORS 136.060 were decided incorrectly. Both parties, however, relied

on Court of Appeals case law to support their respective positions as to whether,

given the circumstances of this case, a joint trial was “clearly inappropriate”

under ORS 136.060. Although defendant’s argument below may not have been as

well-developed as the argument that he now makes on direct review, we conclude

that he sufficiently preserved the issue.

384 State v. Turnidge (S059155)

Two aspects of the text of ORS 136.060(1) provide

useful insight. First, by providing that jointly charged defen-

dants “shall be tried jointly unless the court concludes” that

a joint trial would be “clearly inappropriate,” the statute

expresses a preference for joint trials. A joint trial is man-

datory in all cases, unless the statutory standard of “clearly

inappropriate” is met. In effect, then, the default approach

under the statute is for jointly charged defendants to be

jointly tried. Second, to overcome that default approach, it

is not enough that a joint trial be inappropriate; it must be

“clearly” so. There must be no doubt or question that a joint

trial is inappropriate; a risk or possibility that the joint trial

will prove inappropriate is not enough.

The second subsection of the statute provides con-

text that bolsters that understanding. ORS 136.060(2) gives

the trial court, in ruling on a motion to sever, the author-

ity to order the prosecution to deliver to the court, for in

camera inspection, “statements or confessions made by any

defendant that the prosecution intends to introduce into

evidence at the trial.” Through that procedural authority, a

trial court can anticipate a so-called Bruton problem, which

refers to constitutional issues that potentially arise in joint

trials of codefendants when statements or confessions of one

defendant are admissible against the defendant who made

them, but inadmissible against another defendant. In cer-

tain circumstances, the prejudice to the jointly tried defen-

dants may be sufficiently great that, despite a trial court’s

instructions limiting the jury’s consideration of the state-

ments, reversal and a remand for separate trials is consti-

tutionally required. See, e.g., Bruton v. United States, 391

US 123, 88 S Ct 1620, 20 L Ed 2d 476 (1968) (admission

of codefendant’s confession implicating both codefendant

and defendant violated defendant’s federal constitutional

rights to confrontation and cross-examination, despite jury

instruction to consider confession only as to codefendant).12

12

Bruton did not involve a motion for severance. Rather, the issue involved

the admissibility of a codefendant’s confession that implicated the defendant.

Because severance can address the prejudice caused by such a confession, the

United States Supreme Court in Bruton noted the existence of a provision of Rule

14 of the Federal Rules of Criminal Procedure (FRCrP) that, “[i]n ruling on a

motion by a defendant for severance[,] the court may order the attorney for the

government to deliver to the court for inspection in camera any statements or

Cite as 359 Or 364 (2016) 385

In combination, then, the text and context of ORS

136.060(1) suggest that “clearly inappropriate” was designed

to be a difficult standard to meet. The statute expresses a

preference for joint trials of jointly charged defendants, sets

a standard that requires no doubt or question that a joint

trial will be “inappropriate,” and then provides the trial

court with explicit authority to make a record on which the

court can assess whether any statement or confession that

the state intends to put into evidence at trial would violate

constitutional protections if the jointly charged defendants

are jointly tried.

Defendant, however, points to another statute, ORS

132.560, as relevant context to support his position that the

standard in ORS 136.060(1) is less demanding. ORS 132.560

governs requirements for charging instruments and controls

the joinder of offenses against a single defendant. Subsection

(3) provides that, if it appears that the state or the defen-

dant is “substantially prejudiced” by the joinder of the mul-

tiple charged offenses, then either party may move, and the

court may order, separate trials on separate offenses or other

relief that justice requires. Comparing that statute to the

severance statute at issue here, ORS 136.060(1), defendant

asserts that the “clearly inappropriate” standard in the sev-

erance statute must mean something less than what would

be considered “prejudicial,” or “substantially prejudic[ial],”

under the joinder statute.

That comparison does not aid defendant, for two

reasons. First, as we will describe, the “clearly inappropri-

ate” standard was added to ORS 136.060(1) in 1986, but

the legislature did not add the “substantially prejudiced”

standard to ORS 132.560(3) until years later. See Or Laws

1989, ch 842, § 1 (enacting “prejudiced” wording in ORS

132.560(3)); Or Laws 1999, ch 1040, § 17 (adding “substan-

tially”). Because those amendments occurred at different

points in time, and in different and, at most, tangentially

related statutes, it is difficult to see how the legislature’s

confessions made by the defendants which the government intends to introduce

in evidence at the trial.” 391 US at 131-32. The similarities in that wording to

ORS 136.060(2) are notable. FRCrP 14 does not, however, contain any wording

similar to the wording of ORS 136.060(1) and thus contains no explicit presump-

tion in favor of joint trials.

386 State v. Turnidge (S059155)

later use of the “substantially prejudiced” standard in the

offense-joinder statute helps to inform our understanding

of the earlier use of the “clearly inappropriate” standard

in the trial severance statute. See Gaines, 346 Or at 177

n 16 (“Ordinarily, only statutes enacted simultaneously

with or before a statute at issue are pertinent context for

interpreting that statute.”). Second, and in all events, we

disagree that, textually, “clearly inappropriate” communi-

cates a less demanding standard than “substantially prej-

udiced.” To the contrary, when considered in context, as we

have already considered it, “clearly inappropriate” suggests

a stringent standard, for the reasons that we have already

discussed.

Still, for added guidance, we turn to the enactment

history of ORS 136.060. See State v. Dickerson, 356 Or 822,

830, 345 P3d 447 (2015) (court examines prior versions

of statute as part of statutory context). Before 1983, ORS

136.060 provided that, “[w]hen two or more defendants are

jointly indicted for a felony, any defendant requiring it shall

be tried separately.” ORS 136.060 (1981), amended by Or

Laws 1983, ch 705, § 1. Thus, under the earlier version of

that statute, defendants who were jointly charged with fel-

onies were entitled to separate trials if they moved for sev-

erance and “if required.” This court did not have occasion to

consider the words “if required” in that version of the statute,

except to briefly note in one case that a trial court’s grant of

a motion to sever trials for a defendant and a codefendant

jointly charged with negligent vehicular homicide had been

“obedient to the demands of” that version of the statute.

State of Oregon v. Berry and Walker, 204 Or 69, 78, 282 P2d

344 (1955). In 1983, the legislature amended ORS 136.060,

adding what is now subsection (1), to provide, in part, that,

“[w]hen two or more defendants are jointly charged with

commission of the same crime or crimes, whether felony or

misdemeanor, * * * all of which occurred as part of the same

act or transaction, they may be tried separately or jointly in

the discretion of the court.” Or Laws 1983, ch 705, § 1. Thus,

during the early 1980s, the statute changed from one that

entitled jointly charged defendants, on a proper motion, to

separate trials “if required,” to one that allowed severance

at the court’s unbounded discretion.

Cite as 359 Or 364 (2016) 387

In 1986, the voters passed a “Crime Victims’ Bill

of Rights” that amended several statutes, including ORS

136.060. Or Laws 1987, ch 2. As a result of that amend-

ment, ORS 136.060(1) took its current form, mandating a

joint trial for jointly charged defendants “unless the court

concludes before trial that it is clearly inappropriate to do

so and orders that a defendant be tried separately,” and fur-

ther requiring the court to “strongly consider the victim’s

interest in a joint trial.” Or Laws 1987, ch 2, § 6.13

Defendant asserts that, in amending ORS 136.060

as part of the 1986 crime victims’ rights initiative, the vot-

ers intended to increase victims’ rights, but not remove

rights from criminal defendants. The wording of the ini-

tiative contradicts that assertion, however. Textually, the

voters expressed a preference for joint trials that did not

exist in the 1983 version of the statute, and they signifi-

cantly constrained a trial court’s authority to grant a defen-

dant’s motion for severance, limiting that authority to cir-

cumstances in which it was “clearly inappropriate” to go

forward with joint trials. The fact that the voters may have

done so to further a victim’s interest in having joint trials,

rather than with the independent goal of narrowing when a

defendant could obtain severance, does not change the fact

that the voters achieved their objective by making it harder

for a jointly charged defendant to obtain a severance.14 See

generally Bruton, 391 US at 134 (“Joint trials do conserve

13

As part of the 1986 initiative, the voters also removed the earlier refer-

ences to felonies or misdemeanors. ORS 136.060(1) now refers more generally to

“[j]ointly charged defendants.”

14

When interpreting a statute adopted via initiative, this court may con-

sider the history of the measure, including “the ballot title and arguments for

and against the measure included in the voters’ pamphlet, and contemporaneous

news reports and editorial comment on the measure.” Ecumenical Ministries v.

Oregon State Lottery Comm., 318 Or 551, 560 n 8, 871 P2d 106 (1994); see also

State v. Algeo, 354 Or 236, 246, 311 P3d 865 (2013) (court may consider history

of voter-adopted measure, if useful to court’s analysis, in addition to considering

text and context). But see State v. Sagdal, 356 Or 639, 643, 343 P3d 226 (2015)

(court exercises caution in relying on statements of advocates, such as those con-

tained in voters’ pamphlet, due to partisan character). The only part of the vot-

ers’ pamphlet pertinent to ORS 136.060 was the statement that the measure

would “[i]ncrease[ ] preference that jointly charged defendants be tried together.

Court shall strongly consider victim’s interest in joint trial when deciding defense

request for separate trials.” Official Voters’ Pamphlet, General Election, Nov 4,

1986, 52.

388 State v. Turnidge (S059155)

state funds, diminish inconvenience to witnesses and public

authorities, and avoid delays in bringing those accused of

crime to trial.”).

We therefore construe ORS 136.060(1) as follows.

In granting a pretrial motion to sever, a trial court must

conclude that a joint trial is “clearly inappropriate,” which

means that the record must establish, beyond doubt or ques-

tion, that a joint trial of jointly charged defendants would

be inappropriate. “Inappropriate,” in that context and given

the preference for joint trials, necessarily means legally

inappropriate, such that going forward with a joint trial

would be legal error. That is, the standard is triggered by

the kind of circumstances that—in advance of trial—a court

can foresee likely could result in a legal error of sufficient

gravity to give rise to either a mistrial or a reversal, fol-

lowed by separate retrials. An example of the kind of cir-

cumstance that the legislature had in mind is reflected in

subsection (2) of the statute, which ensures the trial court’s

authority to order the prosecution to turn over statements

and admissions of a jointly charged defendant that the pros-

ecution anticipates introducing at trial. That subsection

plainly anticipates the kind of circumstance that arose in

Bruton, where the defendant could not be tried jointly with

his codefendant—given the admissions and statements on

which the prosecution had relied to prove the codefendant’s

guilt—without violating the defendant’s federal confronta-

tion and cross-examination rights. See 391 US at 135-36

(reversing on that ground). That is not to say that a Bruton

problem is the exclusive ground on which a trial court may

allow a motion to sever, but it demonstrates the nature of

the standard involved: A trial court may conclude that it

would be “clearly inappropriate” for jointly charged defen-

dants to be jointly tried when the information available to

the trial court in advance of trial permits the court to rea-

sonably predict that a joint trial could likely inject error into

the trial that would result either in a mistrial in the course

of the trial or a later reversal by an appellate court.

In articulating that standard, one aspect of the

statutory procedure and standard bears special emphasis.

By its express terms, ORS 136.060(1) requires the “clearly

inappropriate” determination to be made in advance of trial

Cite as 359 Or 364 (2016) 389

and on the basis of the record made at that time. In par-

ticular, that statute expressly declares that jointly charged

defendants “shall be tried jointly” unless the court concludes

“before trial” that it is clearly inappropriate to do so and

“orders” separate trials. The record on which the trial court

is to resolve the motion is thus necessarily the record made

at the time of the motion. We therefore agree with the Court

of Appeals, which for many years has held:

“When we review a trial court’s ruling on a motion to sever,

* * * we examine the decision in light of the arguments

asserted and circumstances pertaining at the time the

pretrial motion was made. * * * Errors that occur during

trial may provide grounds for a mistrial motion or for other

relief, but they cannot provide the basis for a motion to

sever.”

Turner, 153 Or App at 74. As a simple matter of practical-

ity, it is difficult to see how a joint trial can be severed into

separate trials once the trial has begun. Even if it could

be, however, the statute does not authorize midtrial sever-

ance. Therefore, although defendant in this case renewed

his severance motion during the trial at several points, the

only severance motion and arguments in support that we

consider are those that he made pretrial, pursuant to ORS

136.060.15

We turn to the merits of defendant’s motion. In par-

ticular, we consider whether—when defendant made his

pretrial motion to sever—the trial court could determine on

the record before it that a joint trial was “clearly inappropri-

ate.” In support of his motion, defendant relied, in part, on

his claim that the state intended to offer certain statements

or confessions made by Bruce that violated defendant’s con-

frontation and cross-examination rights under Bruton, 391

US 123. As we have discussed, if defendant were correct in

15

Although we do not consider defendant’s midtrial motions for severance

as such, defendant coupled those midtrial motions with other objections and

grounds for relief—such as moving to admit or exclude certain evidence or for a

mistrial. To the extent that defendant has raised claims of errors based on the

appropriate related objections and motions that he made midtrial, we have con-

sidered them either expressly in resolving those other claims of error, or we have

considered them and declined to address them because they lack merit or—if any

error occurred—such error was harmless.

390 State v. Turnidge (S059155)

that regard, a joint trial would be “clearly inappropriate”

under ORS 136.060(1), and it would have been error for the

trial court to decline to order separate trials. But, as we will

explain, none of Bruce’s statements were objectionable on

that basis.

In Bruton, the United States Supreme Court held

that a defendant is denied his or her rights under the

Confrontation Clause of the Sixth Amendment when, in a

joint trial with a codefendant, the codefendant does not tes-

tify, but the codefendant’s statement implicating the defen-

dant as a participant in a crime is admitted in evidence. 391

US at 126. In so holding, the Supreme Court overruled prior

case law holding that jury instructions limiting the use of

such evidence were sufficient to cure the prejudice. Id. While

acknowledging that juries generally can be expected to fol-

low limiting instructions of that kind, id. at 135, the danger

of the jury not doing so in this context was too great:

“[T]here are some contexts in which the risk that the jury

will not, or cannot, follow instructions is so great, and the

consequences of failure so vital to the defendant, that the

practical and human limitations of the jury system can-

not be ignored. Such a context is presented here, where

the powerfully incriminating extrajudicial statements of

a codefendant, who stands accused side-by-side with the

defendant, are deliberately spread before the jury in a joint

trial. Not only are the incriminations devastating to the

defendant but their credibility is inevitably suspect, a fact

recognized when accomplices do take the stand and the

jury is instructed to weigh their testimony carefully given

the recognized motivation to shift blame onto others. The

unreliability of such evidence is intolerably compounded

when the alleged accomplice, as here, does not testify and

cannot be tested by cross-examination.”

Id. at 135-36 (citations and footnote omitted).

As that passage reveals, the danger that the Court

identified was specific to statements made by one defen-

dant that directly incriminated the other defendant, that

were not subject to cross-examination, and that could not

be cured by a jury instruction. For the Bruton rule to apply,

the nontestifying codefendant’s out-of-court statement must

“on its face” incriminate the other defendant. Richardson v.

Cite as 359 Or 364 (2016) 391

Marsh, 481 US 200, 208-09, 107 S Ct 1702, 95 L Ed 2d 176

(1987). Where the statement does not expressly incriminate

the other defendant, and instead becomes incriminating

“only when linked with evidence introduced later at trial,”

no Bruton problem arises. Richardson, 481 US at 208.

In this case, defendant’s Bruton argument ran to

various out-of-court statements that Bruce had made, which

ultimately were admitted into evidence and which we have

earlier generally described. See 359 Or at 378 (generally

describing statements); see also State v. Turnidge (S059156),

359 Or 507, 511, ___ P3d ___ (2016) (summarizing some

statements at issue in more detail). In none of those state-

ments, however, did Bruce confess to or make admissions

about the charged crimes. Neither did any of Bruce’s state-

ments directly implicate defendant in the charged crimes

or shift blame for the crimes to defendant. Indeed, the chal-

lenged statements did not relate directly to the crimes at all.

They revealed, instead, Bruce’s unfavorable views toward

government and law enforcement, which the state offered to

demonstrate his motives in committing the crimes. Bruce’s

out-of-court statements did not, as Bruton requires, “on

their face” incriminate defendant and did not present a risk

of prejudice that was the same as or analogous to the risk

that animated the holding in Bruton. The fact that the state

intended to introduce Bruce’s statements at the joint trial

therefore did not render the joint trial “clearly inappropri-

ate” under ORS 136.060(1) and require the trial court to

order separate trials.16

In addition to his Bruton-based claim, defendant

also argued below that the trial court should order separate

trials because the state’s use of Bruce’s out-of-court state-

ments in a joint trial would, in effect, “taint” him “by associ-

ation,” notwithstanding any limiting jury instruction to the

16

Defendant separately assigns error to his motion, under Bruton and on

Sixth Amendment grounds, to exclude Bruce’s out-of-court statements. Our

analysis above effectively resolves that assignment of error as well.

Because the statements do not fall within the Bruton rule, we also need

not decide whether, as the state argues, that rule is now limited by Crawford

v. Washington, 541 US 36, 124 S Ct 1354, 158 L Ed 2d 177 (2004). See, e.g.,

U.S. v. Smalls, 605 F3d 765, 768 n 2 (10th Cir 2010) (“the Bruton rule, like the

Confrontation Clause upon which it is premised, does not apply to nontestimonial

hearsay statements”; citing representative federal cases).

392 State v. Turnidge (S059155)

contrary. Specifically, defendant argued that, given his close

relationship with Bruce—that is, because he was Bruce’s

son and coworker—the jury might conclude that defendant

took seriously, or even endorsed, Bruce’s beliefs. Defendant’s

argument was, in essence, that Bruce’s out-of-court expres-

sions of his anti-government sentiments likely would not be

relevant and admissible against defendant if he were sep-

arately tried and admitting them in a joint trial would be

so highly prejudicial that the jury could not be expected

to follow the court’s instructions to consider that evidence

against only Bruce.

We do not agree that the earlier statements that

Bruce had made were irrelevant to defendant’s guilt. Here,

the state had ample evidence that Bruce and defendant had

committed the crimes together. If, then, the state could prove

that Bruce had a motive to commit the crimes (i.e., his anti-

government, anti-law enforcement, and anti-establishment

sentiments), that would be relevant to show why the crimes

were committed, even if the motivation were Bruce’s, and

defendant’s role were that of a follower or an aide who did

not share those views. If that evidence “tainted” defendant

in some way, as he argued in support of severance, the taint

was not an impermissible one. See generally Zafiro v. United

States, 506 US 534, 540, 113 S Ct 933, 122 L Ed 2d 317

(1993) (right to fair trial does not include right to exclude

codefendant’s testimony if relevant). And even if the taint

were in some way impermissible, it is the kind of concern

that we have long trusted limiting jury instructions to over-

come. See generally State v. Reyes, 209 Or 595, 630-31, 308

P2d 182 (1957) (when evidence is admissible for limited pur-

pose, such as to show motive, court should give instruction

on request to minimize possible use of evidence by jury for

inadmissible purpose).

But more to the point, defendant’s claim in that

regard does not meet the “clearly inappropriate” standard

for severance under ORS 136.060(1). As we have discussed,

that standard is not implicated by every evidentiary dis-

pute over relevancy and potential prejudice that inevitably

may arise at trial. Rather, the standard is triggered by the

kind of circumstances that, in advance of trial, a court can

foresee will lead to a legal error of sufficient gravity that it

Cite as 359 Or 364 (2016) 393

could likely result in either a mistrial or a reversal, followed

by separate retrials. Evidence that Bruce held fervent anti-

government sentiments, and harbored a motive to commit

the crimes as a result, does not satisfy that standard.

The same is true of the final argument that defen-

dant made in support of his motion for severance and that he

renews on review. He argued that his and Bruce’s “respec-

tive positions at trial may conflict and may require mutu-

ally exclusive defenses, of such a nature that, in viewing the

totality of the evidence in the case, the defendant will be

denied a fair trial[.]” See generally Rhone v. United States,

365 F2d 980, 981 (DC Cir 1966) (generally noting scenario

in which defenses are irreconcilable, presenting danger that

jury will unjustifiably infer that conflicting defenses demon-

strates guilt of both defendants). By way of example, defen-

dant cites aspects of his and Bruce’s opening statements,

in which his counsel asserted his innocence and pointed to

Bruce as the lone perpetrator, while Bruce’s counsel asserted

that defendant was not truthful. Those aspects of the trial

record, according to defendant, show that he and Bruce took

“inconsistent and hostile positions at trial,” and each was

attempting to use the state’s evidence “to exculpate himself

and inculpate the other.”17

In essence, however, the only inconsistency in their

defenses was that defendant’s theory of the case was that

Bruce had committed the crimes without defendant’s assis-

tance, while Bruce, through his not-guilty plea, effectively

claimed that he was not involved in the crimes at all. If

that kind of inconsistency in the defenses of jointly charged

defendants were to render joint trials “clearly inappro-

priate,” then few, if any, joint trials could ever go forward

under ORS 136.060(1). It would be the rare case in which

jointly tried defendants would not have different theories

as to their respective roles in and culpability for the crime.

Thus, it would be the usual case, not the exceptional one, in

which jointly charged defendants could point to the tension

17

In making this argument, defendant relies on aspects of the record from

trial, rather than the motion for severance, which, as discussed, is not part of a

trial court’s consideration when ruling on a motion for severance. In any event,

we reject defendant’s argument for the reasons explained in the text below.

394 State v. Turnidge (S059155)

that might arise from their inconsistent theories and the

evidence that they may present. If we were to deem joint

trials to be “clearly inappropriate” in every such case, the

statute would establish a presumption in favor of joint trials

but then except the usual case to which the presumption

would otherwise apply. In effect, the exception would be so

broad as to swallow the presumptive rule—a result that we

do not think the voters intended when they enacted the cur-

rent version of ORS 136.060(1). The statute requires more,

and the kind of “inconsistency” in the defenses advanced by

jointly charged defendants on which defendant relies in this

case does not satisfy it.

For those reasons, we conclude, as did the trial court,

that a joint trial of defendant and Bruce was not “clearly

inappropriate” in these circumstances, ORS 136.060(1).

Consequently, the trial court did not err in denying defen-

dant’s motion to sever.18

B.  Motion to Suppress Statements Made to Law Enforcement

(Assignment No. 6)

Before trial, defendant moved to suppress the state-

ments that he made to law enforcement when he was ques-

tioned at his home, arguing, among other things, that those

statements were obtained in violation of his right to coun-

sel under Article I, section 12, of the Oregon Constitution.19

In particular, defendant argued that he was in custody or

circumstances sufficiently compelling to be the equivalent

of custody, and, while being questioned in that setting, he

invoked his derivative right to counsel, which required law

enforcement to immediately cease questioning. The trial

court denied that motion, reasoning that the surrounding

18

Defendant also argues that the trial court’s failure to sever his trial from

Bruce’s trial violated his fair trial rights under the Sixth Amendment to the

United States Constitution, which applies to the states through the Fourteenth

Amendment, Pointer v. Texas, 380 US 400, 85 S Ct 1065, 13 L Ed 2d 923 (1965).

Our analysis of defendant’s so-called Bruton claim under the “clearly inap-

propriate” standard of ORS 136.060(1) necessarily resolves defendant’s Sixth

Amendment argument as well.

19

Article I, section 12, of the Oregon Constitution provides that “[n]o per-

son shall be put in jeopardy twice for the same offence [sic], nor be compelled in

any criminal prosecution to testify against himself.” The right to counsel that

Article I, section 12, provides is derivative of the protection against compelled

self-incrimination. State v. Joslin, 332 Or 373, 380, 29 P3d 1112 (2001).

Cite as 359 Or 364 (2016) 395

circumstances had not been compelling and that, in all

events, defendant knowingly and voluntarily waived his

rights and chose to speak with law enforcement.

On review, defendant renews his argument, but only

in part. As he did below, he argues that the circumstances

were sufficiently compelling to trigger his derivative right

to have counsel present, if he invoked that right, before law

enforcement could continue questioning him. Beyond that,

however, he does not focus on whether he adequately waived

his rights and responded to questions. Rather, his princi-

pal argument on review is that he equivocally—rather than

unequivocally—invoked his right to counsel, which required

law enforcement to clarify whether he wanted to continue

speaking without counsel present before asking him further

investigatory questions. As we explain below, we agree with

the trial court that the circumstances were not compelling

within the meaning of Article I, section 12, and defendant’s

derivative right to counsel therefore was not triggered. As a

result, law enforcement was not required to cease or narrow

the questioning, contrary to defendant’s position. The trial

court therefore correctly denied defendant’s motion.

1.  Additional facts

We state the facts consistently with the trial court’s

factual findings and its denial of defendant’s motion to sup-

press. State v. Shaff, 343 Or 639, 641, 175 P3d 454 (2007). To

the extent that the court did not make express findings, we

presume that the court decided the facts in the light most

favorable to the state. Ball v. Gladden, 250 Or 485, 487, 443

P2d 621 (1968).

As we described earlier, by December 14, the second

day after the bombing, investigators had identified defen-

dant as a possible suspect, based on both their review of the

Salem Walmart video surveillance footage and defendant’s

association with Bruce, who in turn owned a Chevrolet

LUV pickup truck that matched the truck in the footage.

Detective Troncosco from the Keizer Police Department and

Lieutenant Duvall from the Oregon State Police drove by

defendant’s home on Nolan Lane around 4:00 p.m., and saw

a Chevrolet LUV pickup truck, which matched the one in the

396 State v. Turnidge (S059155)

Walmart footage, parked in the driveway. They called for

back-up; other officers arrived; and, with the permission of

adjacent and nearby neighbors, two officers secured vantage

points to observe the home, and others established a dis-

tant perimeter. At 4:23 p.m., Troncosco and Duvall parked

Duvall’s unmarked car in front of defendant’s home and

approached the door. One officer observing the home from

a distant vantage point briefly drew his weapon to “cover”

them, but neither he nor his weapon were visible from defen-

dant’s home. At that point, none of the other officers could be

seen from defendant’s home.

Troncosco and Duvall, both wearing plain clothes,

knocked on the door. Defendant answered. Troncosco and

Duvall explained that they were investigating the Woodburn

bank bombing and were talking to individuals who owned

pickup trucks. They asked defendant if they could speak

with him privately. Defendant agreed to talk, stated that

they could talk on the porch, and he stepped outside and

closed the door. By then, it was getting dark and snowing,

and it was very cold. Troncosco asked defendant if he would

be willing to speak in Duvall’s unmarked car to get out of

the weather. Troncosco was also concerned that, with the

door shut, he and Duvall could not see whether anyone was

inside the house near the door, which presented a safety con-

cern. Defendant agreed to speak in Duvall’s car, went back

inside his house for a few moments, and returned wearing a

jacket.

Before the three walked to Duvall’s car, Troncosco

told defendant that he was not under arrest and asked if

he had any weapons. Defendant responded that he was

unarmed, and he consented to be searched for weapons.

Duvall quickly patted down the outside of defendant’s cloth-

ing and confirmed that he was unarmed. Duvall then entered

the car on the driver’s side, defendant sat in the front passen-

ger’s seat, and Troncosco sat in the back seat. Once inside,

defendant asked Troncosco if “he had to talk.” Troncosco

again told defendant that he was not under arrest, that he

did not have to speak with them, and that he was free to

leave. Troncosco also told defendant that, although he was

not under arrest, Troncosco would advise him of his rights,

Cite as 359 Or 364 (2016) 397

and he then read defendant his Miranda rights. Defendant

acknowledged that he understood those rights and stated

that he had no questions.

Troncosco began by verifying defendant’s identity,

confirming his name and asking other identifying informa-

tion. About then, one or two law enforcement officers walked

in from the more distant areas, but without weapons drawn.

Also by then, defendant’s fiancée, who had been in the home,

had opened the door to watch as defendant was interviewed.

One or both of the officers who had emerged from the more

distant areas approached defendant’s front porch, and stood

by, casually speaking with defendant’s fiancée. Defendant’s

fiancée did not see any officer’s weapon drawn.

At that point, Troncosco asked defendant if he

would be willing to speak at the office because they were

not in a good setting to conduct the interview. Defendant

replied, “This sounds serious. Do I need an attorney?”

Troncosco told defendant that he could not offer legal

advice and that defendant would need to make that deci-

sion himself. Troncosco again explained that law enforce-

ment was contacting several owners of similar trucks and

that he was not the only person being contacted. Defendant

asked Troncosco a second time whether he should have an

attorney, adding that he had nothing to do with the bomb-

ing. Troncosco again told defendant that defendant had to

decide for himself whether he wanted an attorney present.

Troncosco added that the police had spoken with other peo-

ple who had not thought it necessary to have an attorney,

but emphasized that defendant needed to answer that ques-

tion for himself.

Defendant then proceeded to talk to Troncosco and

Duvall in Duvall’s car. In response to questions, defendant

explained, among other things, that he had been driving

the blue Chevrolet LUV pickup truck, but Bruce owned it;

that defendant had a biodiesel business with Bruce that

involved, for defendant, welding and painting metal; and

that defendant was trying to get a second job because he and

Bruce needed money to expand. Defendant also stated that

he had been in Bend, Medford, and Eugene on the day of the

bombing, driving Bruce’s larger white pickup truck, and had

398 State v. Turnidge (S059155)

learned of the bombing through news coverage. Finally, in

response to questions about whether he owned a computer,

defendant told Troncosco and Duvall that he had owned a

laptop, but it had been stolen and he had not reported the

theft.20

After speaking with defendant for about 18 min-

utes, Duvall told defendant that he and Troncosco would

like to look in his truck. Defendant agreed, saying, “I don’t

care; have at it” and “be my guest.” Troncosco and Duvall

gave defendant a consent-to-search card, which he read and

signed, stating as he signed it, “I’ve got nothing to hide.” The

three left Duvall’s car and walked to the truck. Defendant

opened the truck, and Troncosco photographed it while

defendant stood nearby in the driveway, smoking a ciga-

rette. After photographing the truck, Troncosco and Duvall,

out of defendant’s earshot, agreed that the truck was the one

in the surveillance footage.

Troncosco and Duvall then walked over to defen-

dant, who was still standing in the driveway, smoking

while it continued to snow. Troncosco told defendant that

the driveway was not a good place to talk and asked if

defendant would go to their office to continue their conver-

sation. Defendant responded that he did not see any need

to continue talking with them because he already had told

them everything and had not been involved in the bomb-

ing. Troncosco replied that he had some photographs back

at his office that defendant might be interested in seeing.

Defendant then said, “[T]his sounds serious” and stated

that he should have an attorney if he were going to do that.

Troncosco asked defendant if he already had an attorney;

defendant told Troncosco that he would get one and that

they then could talk the next day. Troncosco confirmed that

defendant did not want to speak any further without hav-

ing an attorney and then advised defendant that he was

being placed under arrest. Troncosco handcuffed defendant

and had him sit in one of the patrol cars while police contin-

ued their on-site investigation.

20

By the time that Troncosco and Duvall asked defendant about owning a

computer, law enforcement knew that the TracFones had been remotely activated

over the internet.

Cite as 359 Or 364 (2016) 399

Before trial, defendant moved to suppress all

statements that he made to Troncosco and Duvall, argu-

ing (among other things) that, when he made those state-

ments, he was in a police-dominated atmosphere that ren-

dered the circumstances compelling, thus implicating his

right to remain silent and his derivative right to counsel,

under Article I, section 12. As earlier described, the trial

court concluded that the circumstances were not compel-

ling and that, even if they were, defendant waived his

rights up until the point when, upon arrest, he unequiv-

ocally invoked his right to counsel under Article I, sec-

tion 12.21 We review the trial court’s denial of defendant’s

motion to suppress for legal error. State v. Ehly, 317 Or 66,

75, 854 P2d 421 (1993).

2.  Analysis

Article I, section 12, provides, in part, that “[n]o

person shall be * * * compelled in any criminal prosecution

to testify against himself.” Although by its terms that pro-

vision is a guarantee against self-incrimination, encom-

passed within it is a derivative or adjunct right to have

the advice of counsel in responding to police questioning.

See State v. Meade, 327 Or 335, 339, 963 P2d 656 (1998)

(right to assistance of counsel during custodial interroga-

tion arises out of Article I, section 12, right against self-

incrimination); see generally State v. Randant, 341 Or 64,

70, 136 P3d 1113 (2006), cert den, 549 US 1227 (2007)

21

Defendant makes two additional arguments on direct review that we

decline to consider. First, he argues that both his verbal expressions and other

observable conduct while at the sheriff’s office amounted to “statements” that

followed impermissible questioning after he unequivocally invoked his derivative

right to counsel. At trial, however, defendant did not mention in his motion to

suppress any verbal expression or conduct after the conversations at his home

generally, or at the sheriff’s office in particular. Because his argument in that

regard is unpreserved, we do not consider it.

Second, before the trial court and again on direct review, defendant argues

that the statements at issue were obtained in violation of the Fifth Amendment

to the United States Constitution, as well as Article I, section 12. On review,

defendant only briefly cites the Fifth Amendment and does not offer any devel-

oped argument in support of his reliance on it. We therefore do not address it.

See State v. Thompson, 328 Or 248, 254 n 3, 971 P2d 879, cert den, 527 US 1042

(1999) (court refused to address state or federal constitutional arguments in part,

because, “on review, defendant has failed to present any thorough and focused

constitutional analysis”).

400 State v. Turnidge (S059155)

(discussing and comparing right to counsel as derived from

both Article I, sections 11 and 12, of Oregon Constitution).

The right to counsel that flows from Article I, section 12,

applies only when a suspect is placed in “full custody” or

when circumstances “create a setting which judges would

and officers should recognize to be ‘compelling,’ ” i.e., the

same “compelling circumstances” that give the right to

Miranda protections more generally. State v. Smith, 310 Or

1, 7, 791 P2d 836 (1990) (internal quotation marks omit-

ted). To protect that derivative right to counsel, when a sus-

pect in police custody or compelling circumstances asks to

speak to a lawyer or have a lawyer’s assistance, all police

questioning must cease. State v. Charboneau, 323 Or 38,

54, 913 P2d 308 (1996), cert den, 520 US 1233 (1997); State

v. Montez, 309 Or 564, 572, 789 P2d 1352 (1990). When,

however, the request is “equivocal”—that is, when it is

unclear or ambiguous if the suspect is unwilling to answer

any questions without counsel present—police are limited

to asking follow-up questions to clarify whether the suspect

meant to invoke his or her right to counsel. Charboneau,

323 Or at 55-56; Montez, 309 Or at 572. In either case, noth-

ing prevents the suspect from thereafter waiving the right

to have counsel present during that or later interrogations.

Meade, 327 Or at 339.

Here, defendant contends that, although he was not

in full custody at the time, his encounter with Troncosco

and Duvall effectively placed him in “compelling circum-

stances,” thus triggering his rights under Article I, section

12, including a derivative right to counsel. In that regard,

it is helpful to clarify the limited nature of the issue that

defendant raises. The issue is not whether Troncosco and

Duvall adequately advised defendant of his Miranda rights.

They read defendant his Miranda rights, explaining that he

was not under arrest and was free to leave; they thus appear

to have opted to advise defendant of those rights regardless

whether the warnings were constitutionally required. On

review, defendant does not challenge the adequacy of those

warnings or whether he voluntarily and knowingly waived

them.

Whether the circumstances were compelling for

purposes of Article I, section 12, nevertheless is in dispute

Cite as 359 Or 364 (2016) 401

because, if they were, then defendant had a derivative right

to counsel that attached when he was questioned. That would

mean that, if defendant invoked his right to have counsel

present while being questioned, Troncosco and Duvall were

obligated either to cease asking questions entirely or to clar-

ify whether defendant wanted an attorney present for ques-

tioning, depending on whether the invocation was equivo-

cal or unequivocal. On the other hand, if the circumstances

were not compelling, such that the derivative right to coun-

sel under Article I, section 12, did not attach, Troncosco and

Duvall were entitled to continue to ask defendant possibly

incriminating questions, as long as they did not do so in a

way that rendered his responses involuntary. Cf. State v.

McAnulty, 356 Or 432, 459, 338 P3d 653 (2014), cert den, 577

US ___, 136 S Ct 34 (2015) (analyzing voluntariness of state-

ments separately from whether suppression required based

on Miranda violation). Thus, the predicate issue is whether

defendant was questioned under circumstances that were,

for constitutional purposes, compelling. Only if they were

must we consider whether defendant invoked his right to

have counsel present in a way that required Troncosco and

Duvall either to cease or limit their questioning.22

22

At trial, defendant argued that his request for counsel was unequivo-

cal, obligating police to cease all questioning. He did not further argue that, if

the trial court determined his invocation instead to be equivocal—in the sense

that Troncosco and Duvall should have been unsure whether he was or was not

invoking counsel—then Troncosco and Duvall exceeded the scope of permissible

questioning by failing to first clarify whether defendant in fact was unequivo-

cally invoking counsel. Although the trial court at one point characterized defen-

dant as “equivocal[ly]” asking for counsel, the trial court did so in the context

of finding that defendant had made a knowing and voluntary Miranda waiver.

Defense counsel expressly disagreed with the trial court that defendant had, in

that sense, “equivocal[ly]” invoked his right to counsel. The trial court also found

that defendant had been being “coy” and playing a “coy game” with Troncosco and

Duvall. In context, we understand the trial court to have found that defendant

was deliberately expressing ambivalence about wanting an attorney in an effort

to determine the degree to which he was a suspect. Indeed, defendant expressly

argued as much in his written memorandum to the trial court in support of his

motion to suppress. At no point, in either his written or oral submissions, did

defendant argue that his questions about obtaining an attorney were equivocal

invocations in the sense that law enforcement could, in response, seek only to

clarify whether he was affirmatively invoking his right to counsel.

On review, defendant now argues both that he unequivocally invoked his

derivative right to counsel (so that all questioning had to cease) or, alternatively,

did so “equivocally”—that is, ambiguously—such that Troncosco and Duvall were

required to clarify his intent. As we will explain, we conclude that the circum-

stances were not compelling. We therefore do not consider whether defendant’s

402 State v. Turnidge (S059155)

To determine whether the circumstances were com-

pelling for purposes of Article I, section 12, the overarch-

ing issue is whether the questioning occurred in a “police-

dominated atmosphere.” State v. Roble-Baker, 340 Or 631,

641, 136 P3d 22 (2006). The answer to that question turns

on “how a reasonable person in the suspect’s position would

have understood his or her situation.” Shaff, 343 Or at 645.

Relevant factors in that regard are the location of the encoun-

ter, the length of the encounter, the amount of force exerted

on the suspect, and the suspect’s ability to terminate the

encounter. Roble-Baker, 340 Or at 640-41. Those factors are

not exhaustive or applied mechanically; ultimately, this court

must consider the totality of the circumstances to determine

whether “compelling circumstances” existed. Id. In arguing

that the circumstances in this case were compelling, defen-

dant principally relies on the location of his encounter, the

number of officers on the scene, his inability to terminate the

encounter, and what he characterizes as coercion.

We turn to an examination of the facts in light of

the principles set out above, mindful that we are bound by

the trial court’s findings if there is evidence to support them.

Shaff, 343 Or at 648. Troncosco and Duvall, wearing plain

clothes, first spoke with defendant at his front door and on his

front porch. A brief time passed, and the three then went to

Duvall’s unmarked patrol car. The car was parked directly in

front of defendant’s home, and defendant sat in the front, as

opposed to the back, of the car. From there, the three moved

to defendant’s driveway, where Troncosco and Duvall photo-

graphed defendant’s truck while defendant stood nearby in

his driveway, smoking. He later was formally arrested in the

driveway. Defendant’s entire encounter with Troncosco and

Duvall occurred within view of his fiancée and at or within

close proximity to his home, a place familiar to him. That fact

reduces significantly the likelihood that the circumstances

were inherently compelling for purposes of the Article I, sec-

tion 12, analysis. See Shaff, 343 Or at 646 (so explaining;

citing representative cases); see also State v. Carlson, 311 Or

alternative argument about the ambiguous nature of his invocation is properly

before us or—even assuming that it is—whether defendant’s inquiries about

whether he should get an attorney were sufficient to require Troncosco and

Duvall to ask only clarifying questions of defendant.

Cite as 359 Or 364 (2016) 403

201, 204-05, 808 P2d 1002 (1991) (questioning in familiar

setting of parking lot of suspect’s apartment not inherently

compelling). Defendant counters that evidence by urging

that Troncosco and Duvall “isolated” him from his home,

which is characteristic of compelling circumstances. It was

defendant, however, who declined Troncosco’s and Duvall’s

request to speak in his home, and defendant who agreed to

be interviewed in Duvall’s car to get out of the cold. In other

words, defendant made the choice to speak privately with

Troncosco and Duvall somewhere other than in his home.

That is not the kind of police-forced isolation that increases

the potential for the circumstances to be compelling.

Equally important to the analysis is the nature of

Troncosco’s and Duvall’s interactions with defendant. The

trial court expressly found that Troncosco and Duvall were

“relaxed” in their exchange with defendant, and it implic-

itly found that they were not overbearing. Consistently with

those findings, defendant frequently set boundaries on his

interaction with Troncosco and Duvall, and they readily

accepted the boundaries that he set. See State v. Johnson,

340 Or 319, 332, 131 P3d 173, cert den, 549 US 1079 (2006)

(setting not compelling, partly because defendant exercised

control over interrogation). For example, in responding to

Troncosco’s and Duvall’s request to enter his home to speak

with him, defendant instead said he would speak to them

on the porch, and Troncosco and Duvall agreed. Then, when

Troncosco and Duvall suggested that they move to Duvall’s

unmarked patrol car to get out of the dark and snowy weather,

defendant agreed to that suggestion, but he declined their

request to go the state police office to talk, again drawing a

boundary that Troncosco and Duvall respected. That give-

and-take dynamic between defendant and Troncosco and

Duvall continued up to the point when defendant told them

that he would not speak with them further until he first

consulted an attorney. In short, nothing about Troncosco’s

and Duvall’s dialogue with or behavior towards defendant

was overbearing and, in that sense, coercive.

Defendant argues, however, that the atmosphere was

police-dominated because multiple officers had surrounded

the perimeter area near defendant’s home, and those officers

were armed and had their weapons drawn while Troncosco

404 State v. Turnidge (S059155)

and Duvall talked with defendant. The trial court specifi-

cally found, however, that the officers who had secured the

perimeter, and the one officer who had drawn his weapon to

cover Troncosco and Duvall from a distant vantage point,

had not been visible to defendant. The record provides ample

support for that finding. Defendant’s encounter with law

enforcement was limited to his interactions with Troncosco

and Duvall, with the possible exception of the one or two offi-

cers who might have become visible to defendant while he

was in Duvall’s car.23 That fact alone does not compel a con-

clusion that the circumstances were compelling.

Defendant also urges that the circumstances were

compelling because he was unable to terminate his encoun-

ter with Troncosco and Duvall. The record provides no sup-

port for that assertion, especially when viewed—as we are

bound to view it—in the light most favorable to the trial

court’s ruling. The atmosphere was, as the trial court found,

relaxed. And, as we have described, Troncosco and Duvall

were not overbearing and, to the contrary, they respected

defendant’s preferences and the limitations that he set on

their encounter. Beyond that, Troncosco and Duvall repeat-

edly told defendant that he did not have to talk with them.

During their initial encounter with defendant at the front

door, for example, Troncosco and Duvall set the tone by ask-

ing defendant if he would speak with them and then later

asking defendant if he would do so in Duvall’s car, with

defendant agreeing to both requests. Then, before entering

Duvall’s car, Troncosco advised defendant that he was not

under arrest. Again, once in the car, Troncosco reminded

defendant that he did not have to speak with them and was

free to leave, and he also gave defendant formal Miranda

warnings, and did so while emphasizing to defendant that

he was not, however, under arrest.24 Defendant was thus

23

The trial court expressly found that, other than the one officer who had

drawn his weapon to cover Troncosco and Duvall, none of the officers on the scene

had drawn their weapons at any time; it further found that defendant’s fiancée

did not see any police weapons during the encounter. The court did not make any

finding, however, as to whether defendant saw either of the officers who walked

in from the more distant areas.

24

Likewise, although defendant does not expressly so argue, Troncosco’s rec-

itation of Miranda rights did not transform the nature of the encounter from one

that was not compelling into one that was. The reading of Miranda rights is a

Cite as 359 Or 364 (2016) 405

fully aware that he could have terminated the interview at

any point, and Troncosco and Duvall did nothing to suggest

that, had defendant attempted to stop answering questions,

they would have ignored him or pressured him into continu-

ing. Nothing in their actions or attitudes belied their words.

The trial court, in making its factual findings, expressly

characterized defendant as having been “coy,” attempting

to glean information about the investigation. The record

as a whole, as well as in combination with the trial court’s

express and implicit findings, provides no basis to conclude

that defendant was unable, due to law enforcement coercion

or overbearance, to terminate the encounter if he so desired.

Finally, in arguing that the circumstances were

compelling, defendant points to the fact that Duvall

searched defendant for weapons. That argument again

misses the mark. Duvall quickly patted down the outside

of defendant’s clothing with defendant’s consent, which had

been obtained after Troncosco had informed defendant that

he was not under arrest and that the search would be lim-

ited to a weapons check. After that patdown, defendant sat,

unrestrained, in the front seat of an unmarked patrol car

parked in front of his home, speaking with Troncosco and

Duvall, who were dressed in plain clothes. Viewed in con-

text, Duvall’s patdown search did not convert the otherwise

noncompelling situation into a compelling one.

Based on the totality of the circumstances, we con-

clude that a reasonable person in defendant’s position would

not have perceived the circumstances of the encounter

with Troncosco and Duvall to be compelling for purposes

of Article I, section 12. The encounter occurred at a place

familiar to defendant, in a relatively relaxed and noncoercive

environment, with repeated expressions by Troncosco and

Duvall that defendant had the ability to end the encounter

whenever he wanted, and with repeated instances in which

defendant exercised control over the terms of the encounter.

factor that weighs in favor of concluding that a defendant subject to police inter-

rogation understands his or her ability to terminate questioning and to other-

wise seek counsel rather than cooperate with law enforcement. See, e.g., State

v. Jarnagin, 351 Or 703, 722-24, 277 P3d 535 (2012) (advice of Miranda rights

effective not only to ensure knowing and voluntary waiver of right to remain

silent and to have assistance of counsel, but also to overcome taint of earlier

interrogation made in compelling circumstances without Miranda warnings).

406 State v. Turnidge (S059155)

The trial court therefore did not err in denying defendant’s

motion to suppress.

C.  Excusal of Jurors for Cause and Destruction of Completed

Jury Questionnaires (Assignment Nos. 18-41, 44)

During voir dire, the trial court excused several

jurors for cause. Following voir dire, at the court’s direc-

tion, the completed juror questionnaires that had been used

during voir dire were destroyed. Defendant assigns error

to the trial court’s excusal of three prospective jurors and

also to the destruction of the questionnaires. With regard to

excusal of the three prospective jurors, defendant contends

that the court improperly excused those jurors because

of their general objections to the death penalty, in viola-

tion of the rule announced in Witherspoon v. Illinois, 391

US 510, 88 S Ct 1770, 20 L Ed 2d 776 (1968), under the

Sixth Amendment to the United States Constitution.25 With

regard to destruction of the questionnaires, which contained

information about the prospective jurors’ personal back-

grounds, as well as, to some degree, their views on the death

penalty, defendant argues that the destruction violated the

Due Process Clause of the Fourteenth Amendment to the

United States Constitution. We begin by discussing the

court’s excusal of the three prospective jurors and then turn

to the court’s decision to destroy the questionnaires.

1.  Excusal of prospective jurors Hamlin, Porter, and

Burns

As noted above, defendant raises a Witherspoon

challenge to the trial court’s excusal of three prospective

jurors—Hamlin, Porter, and Burns. In Witherspoon, the

Supreme Court held that, under the Sixth Amendment right

to an impartial jury, “a sentence of death cannot be carried

out if the jury that imposed or recommended it was chosen

by excluding veniremen for cause simply because they voiced

general objections to the death penalty or expressed consci-

entious or religious scruples against its infliction.” 391 US at

25

The Sixth Amendment provides, in part, “In all criminal prosecutions, the

accused shall enjoy the right to a speedy and public trial, by an impartial jury

* * *.” The Sixth Amendment applies to the states through the Due Process Clause

of the Fourteenth Amendment. Duncan v. Louisiana, 391 US 145, 149, 88 S Ct

1444, 20 L Ed 2d 491 (1968).

Cite as 359 Or 364 (2016) 407

522. The Court further noted that a prospective juror could

constitutionally be excused for cause if it was “unmistak-

ably clear” that he or she would “automatically vote against

the imposition of capital punishment without regard to any

evidence that might be developed at the trial.” Id. at 522

n 21. In a later case, however, the Court retreated from the

“unmistakably clear” formulation in Witherspoon because of

its practical difficulties as a legal standard. Wainwright v.

Witt, 469 US 412, 424, 105 S Ct 844, 83 L Ed 2d 841 (1985).

Instead, the Court explained that “a juror may not be chal-

lenged for cause based on [the juror’s] views about capital

punishment unless those views would prevent or substan-

tially impair the performance of [the] duties as a juror in

accordance with [the juror’s] instructions and * * * oath.” Id.

at 420 (quoting Adams v. Texas, 448 US 38, 45, 100 S Ct

2521, 65 L Ed 2d 581 (1980) (internal quotation marks and

emphasis omitted)). We thus must determine whether the

trial court abused its discretion in applying that standard

in this case. See State v. Lotches, 331 Or 455, 473-74, 17 P3d

1045 (2000), cert den, 534 US 833 (2001) (applying abuse

of discretion standard of review to determine whether trial

court erred in excusing jurors who expressed personal oppo-

sition to death penalty).

Before defendant’s trial, as part of voir dire, the

venire of prospective jurors was notified that the state

was seeking the death penalty and that, if the jury found

defendant guilty, the jury would be required to answer four

additional questions during the penalty phase to determine

whether defendant would receive the death penalty, includ-

ing a fourth question that asked whether defendant “should

receive a death sentence.” See ORS 163.150(1)(b)(D) (jury

in penalty phase must decide whether defendant should

receive death sentence). The parties and the trial court

then asked specific prospective jurors questions designed

to determine if they would be able to follow the law during

the penalty phase. Those questions led the court to excuse

several prospective jurors, either because their views were

too strongly in favor of or against the death penalty. On

review, defendant challenges the court’s excusal of three

of those prospective jurors—Hamlin, Porter, and Burns—

contending that they voiced only general moral objections to

408 State v. Turnidge (S059155)

the death penalty that did not rise to the level of “substan-

tially impair[ing] the performance” of their duties as jurors.

Witt, 469 US at 420. We examine each of those jurors’ state-

ments and answers during voir dire in turn.

We begin with prospective juror Hamlin. Defense

counsel began voir dire by discussing a number of topics,

such as the presumption of innocence, jury unanimity,

and exposure to pretrial publicity. Defense counsel then

asked Hamlin about his view of the death penalty. Hamlin

responded, “I disagree with the death penalty on ethical

grounds. I * * * believe that people are fallible, and even 12

people could be wrong.” Counsel followed up by asking, “I’ve

read your juror questionnaire, and I guess I view it as—

what what’s important here is, do you think you can follow

the law?” Hamlin and defense counsel then had the follow-

ing exchange:

“JUROR (Hamlin):  Maybe I’m not understanding you

here, * * * or not understanding the question, but isn’t [ques-

tion] No. 4[, which asks whether a defendant should receive

a death sentence, ORS 163.150(1)(b)(D)] subjective[?]

“[DEFENSE COUNSEL]:  You’re absolutely right, it is

a subjective question. There’s no burden of proof. It’s up to

you to decide. But you have to follow the law, and what that

means, I think, is that you have to consider what you’ve

heard. You can’t go into that jury room and say, Okay, my

morals say I can’t vote for the death penalty and thus I’m

going to just—no matter what I’ve heard, I’m just going to

answer No. 4 ‘no.’ Does that make sense, what I’m saying?”

“JUROR (Hamlin):  Yeah, kind of. I don’t know how I

could answer that question. I’ve never been placed in that

situation. * * *

“[DEFENSE COUNSEL]:  I guess as you’ve taken an

oath already, I think that oath is to try your best to follow

the law, and I guess what I’m hearing you saying is that

you would try to do that.

“JUROR (Hamlin):  I * * * suppose you could say that,

yes.”

After that exchange, defense counsel asked other prospec-

tive jurors about the questions that they potentially would

Cite as 359 Or 364 (2016) 409

face during the penalty phase. Counsel eventually returned

to Hamlin:

“[DEFENSE COUNSEL]:  Mr. Hamlin, what about

those questions? I think you’ve told me a little bit about

your views on the death penalty. In thinking about it now,

do you think you could follow through?

“JUROR (Hamlin):  To be honest, I * * * don’t know. I

mean, on one hand, I think following the law is important;

but on the other hand, if the law tells me I have to put some-

one to death, that doesn’t sit very well with me.”

(Emphasis added.)

One of the prosecutors later followed up on Hamlin’s

answers:

“[PROSECUTOR]:  You also indicated on your jury

questionnaire that you are opposed to the death penalty,

and if I understand it, it is not for religious reasons.

“JUROR (Hamlin):  No, it is not.

“[PROSECUTOR]:  Now, you’ve obviously heard the

discussion that I had with [a prior juror who had reserva-

tions about the death penalty]. When you go back in the

jury room, if you find the defendant guilty of aggravated

murder—the defendants, I should say, in this case, either

one or both—those are the four questions that you’re going

to answer. Could you ever impose a death sentence, know-

ing that you would have to answer all four of those ques-

tions ‘yes’?

“JUROR (Hamlin):  I believe it is possible that I could.

“[PROSECUTOR]:  On your jury questionnaire you

specifically indicated that you believed it was possible if the

prosecution made—I think the words you used were * * * an

impassioned argument.

“JUROR (Hamlin):  Emotional, I believe.

“[PROSECUTOR]: Emotional. What if the judge

instructs you, and I think he will, that essentially emotion

doesn’t play a part in this? You are to consider the evidence

dispassionately; that means without passion. Okay? In

410 State v. Turnidge (S059155)

other words, you can’t be emotional. You can’t be emotional

in favor of the victims. You can’t be emotional in favor of the

defendants. Okay?

“Knowing that, and the fact that that is the law, that

you would have to consider this without emotion, would you

be able to do so? Would you be able to deliberate?

“JUROR (Hamlin):  No.

“[PROSECUTOR]: Okay, would it be fair to say then,

sir, that if you know you cannot consider emotion, you have

to render your verdict dispassionately, that you would not be

able to follow the law as to those four questions because of

your own personal beliefs regarding the death penalty?

“JUROR (Hamlin):  I believe that’s highly likely.”

(Emphasis added.)

At that point, the prosecutor asked that Hamlin

be excused for cause. The trial court then asked Hamlin

directly, “Are you saying you won’t follow the law as I instruct

you?” Hamlin replied, “I don’t know.” After seeking further

clarification from Hamlin about whether he understood the

issue, the court asked, “Are you saying you can’t do your

job?” Hamlin replied, “I’m saying I don’t think I could vote

to put a man to death.” The court then inquired again about

Hamlin’s ability to follow the law:

“JUROR (Hamlin):  I think I could consider the * * *

points in question four, but I don’t know if that would ever

lead me to a response of ‘yes.’

“THE COURT:  And why is that? Because you just

know what you want the answer to be before you have the

facts to support it?

“JUROR (Hamlin):  I suppose so, yes.

“THE COURT:  And do you think that’s appropriate as

a * * * citizen and your obligation under the law?

“JUROR (Hamlin):  When it comes to the death penalty,

I suppose so.”

(Emphasis added.) The court then excused Hamlin for cause.

On review, defendant urges that Hamlin’s answers

were sufficiently equivocal to preclude his excusal from a

Cite as 359 Or 364 (2016) 411

death penalty jury. We disagree. Hamlin’s answers during

voir dire reflected that, for sincere moral and ethical reasons,

he was opposed to the death penalty. That fact alone is not

disqualifying. Indeed, the point of the fourth question under

ORS 163.150(1)(b) (whether the defendant “should receive

a death sentence”) is to have each juror, in deciding the

appropriate punishment, view the facts of the crime and the

defendant’s culpability through the prism of the juror’s per-

sonal moral and ethical beliefs. In doing that, however, each

juror must be able to apply the law and, true to the oath that

the jurors take, come to a decision within the boundaries

that the law sets. If a juror—whether in favor of or against

the death penalty on principle—holds such strong ethical or

moral views that the juror’s conclusion is effectively foregone,

no matter the law or the evidence in the case, that juror may

be appropriately excused for cause. Witherspoon, 391 US at

522; see also Witt, 469 US at 424 (question is whether juror’s

views would “prevent or substantially impair” performance

of duties as juror).

In Hamlin’s case, the voir dire exchanges quoted

above show that Hamlin’s completed juror questionnaire

raised concerns about Hamlin’s ability or willingness to

vote to impose the death penalty. The trial court and both

the prosecutor and defense counsel took pains during voir

dire to clarify Hamlin’s position. Although Hamlin’s position

may have been somewhat equivocal at the outset, as the voir

dire continued, it became unequivocal: Hamlin conceded

that he knew how he would answer the fourth question,

even without knowing the facts or knowing whether, under

the law, his consideration of the facts would support that

answer. And he was candid in saying that, for him, “[w]hen

it comes to the death penalty,” he thought that approach

was appropriate. For that reason, Hamlin did not think that

there were any facts that could lead him to vote “yes” on the

fourth question. Hamlin’s categorical answers provided the

trial court with grounds to conclude that Hamlin’s personal

beliefs would prevent or substantially impair his perfor-

mance of his duties as a juror. Under Witherspoon and Witt,

a prospective juror who takes that position may be excused

from a capital jury for cause, and the trial court therefore

did not abuse its discretion in excusing Hamlin.

412 State v. Turnidge (S059155)

We reach a similar conclusion as to prospective

juror Porter. During voir dire, in response to defense coun-

sel’s inquiry about the prospective jurors’ general positions

on the death penalty, Porter volunteered, “I cannot make the

decision. Nobody has nobody’s life in their hands.” Defense

counsel noted that, although Porter’s completed question-

naire suggested that Porter opposed the death penalty, she

had answered that nothing would prevent or impair her

ability to follow the trial court’s instructions. Porter reiter-

ated, “I’m saying ‘no’ to the death penalty” and would do so

“regardless of the judge’s instructions.”

Later, the trial court suggested that it was not yet

prepared to dismiss Porter for cause because Porter’s state-

ments about whether she could follow the court’s instruc-

tions were inconsistent. The prosecutor then asked Porter if

there were “any way that you could answer ‘yes’ to question

four?” Porter replied, “No.” The prosecutor asked her about

a statement in her questionnaire that she “could not, no

matter what the facts, impose death,” and whether that was

her “answer here today?” Porter stated, “Yes.” The following

exchange then occurred:

“[PROSECUTOR]:  Okay. So again, no matter what

the facts, no matter the instructions given to you by the

court, you could not vote ‘yes’ to question four?

“JUROR (Porter):  I think I will answer ‘no.’

“[PROSECUTOR]:  No, you could not.

“JUROR (Porter):  I could not.”

The trial court also addressed Porter, noting her inconsis-

tent answers on the juror questionnaire and asking, “Are

you telling me that you could not impose the death pen-

alty no matter what?” Porter then explained her views and

beliefs at length. Ultimately, Porter maintained that she

would respond “no” to the fourth question, and the court

excused her for cause.

The trial court’s decision to excuse Porter, based

on Witherspoon and Witt, is supported by the record, which,

as set out above, contains numerous references to Porter’s

answers on her completed juror questionnaire and several

Cite as 359 Or 364 (2016) 413

lengthy colloquies showing that Porter’s position on the

death penalty would prevent or substantially impair her

performance of her duties as a juror. Under Witherspoon and

Witt, the trial court did not abuse its discretion in excusing

her from the jury.

The third juror excused for cause was prospective

juror Burns. As defense counsel during voir dire began to

explore Burns’s ability to sit on a death penalty case, defense

counsel asked, “Mr. Burns, I think from your questionnaire,

I can gather what your views of the death penalty are, so

I’m not going to ask you that question. But I guess my ques-

tion is: Are you able to follow the rules?” Burns replied,

“Absolutely.” Later, the prosecutor talked to the prospec-

tive jurors about the death penalty, focusing in particular

on whether the jurors would be able to answer “yes” to the

fourth question. Burns responded:

“JUROR (Burns):  * * * I’m having * * * a [little] trouble.

The truth of the matter is that you’ve kind of gone to the

heart of the matter for me, is * * * you get to this point, and

the thought of sitting here in judgment of a man on trial

for his life just frightens the living daylights out of me. I’m

getting very emotional about it just hearing you talk about

it.

“[PROSECUTOR]:  It’s better to do this up front than

to find out at the end—

“JUROR (Burns):  On the other hand, I have tremen-

dous respect for the law of the land—and I want to say that

I could say ‘yes’ to question four. And I think I answered in

my questionnaire that the crime would have to be particu-

lar[ly] heinous to me in order for me to put a man to death,

which is what I’m doing, in essence.

“[PROSECUTOR]: Yes.

“JUROR (Burns):  And it would be very, very tough

for me to make that call. That said, if * * * it was heinous

enough, I think that I could go to that place, but it scares

the hell out of me, just saying it to you.

“[PROSECUTOR]:  It shouldn’t be easy for anyone.

* * * I apologize in advance. I don’t want to press you, but

* * * this is my last chance to speak to you about this. I want

to be absolutely sure we consider this from all angles.

414 State v. Turnidge (S059155)

“So, you’re on the jury. You’re considering the four ques-

tions. There’s already been a finding of guilt as to aggra-

vated murder. All of the other jurors have answered all of

the questions ‘yes,’ and it’s down to you, and you’re trying

to make those decisions. And in your heart of hearts, you’re

convinced that questions one, two and three have been

proved beyond a reasonable doubt. There is no burden of

proof on the fourth question. It is simply considering the

aggravating and mitigating circumstances and that first

question that it poses: Shall a death sentence be imposed[?]

Everything is moving forward toward a sentence of death.

“If you were convinced that the answer should be ‘yes’

to question four, there have been 47 ‘yes’ votes to this point,

and you hold that life in your hands, do you think you’ll be

able to do it?

“JUROR (Burns):  I don’t know.

“[PROSECUTOR]:  You * * *

“JUROR (Burns):  I mean, I’m really sort of tripping

out as you tell this to me, and * * * the safe way is to say

‘no,’ but in my head I’m thinking that the right way is to say

‘yes.’ You have to follow the law.

“[PROSECUTOR]: Uh-huh. You understand—you

heard what [defense counsel] said, though, that is, that the

law is always satisfied with life, and there’s * * * no formu-

lation of this that ever mandates a sentence of death.

“So, knowing that, knowing that the law will never com-

pel you to return a verdict of death, and you’re holding * * *

that last vote—

“JUROR (Burns):  I couldn’t do it, I couldn’t do it.

I would argue as strong as—first of all, I believe that 30

years [or] life without parole is a far worse punishment

than death. I believe putting a man to death in such a sit-

uation as this, you’re * * * doing him a favor, in kind of a

macabre sense.

“But I would argue, as strongly as I possibly could with

my fellow jurors, not to put this man to death, I think.”

(Emphasis added.)

Cite as 359 Or 364 (2016) 415

After that line of questioning, the trial court

excused Burns for cause. In response to the trial court’s rul-

ing, defense counsel argued:

“I think the rehabilitation or whatever you want to call

it was unreasonable by the State. I think [Burns] was clear,

he could do it. They just kept pounding on him, pounding

on him, pounding on him.

“One of the things he did say is that it depended on—

and I’m going to paraphrase[—]as the fourth question

talks about, any circumstances of the offense, and he talked

about a heinous offense. So if he considered this a heinous

offense, he could say ‘yes’ to that. I think that’s what he

said, and the State just beat him, and that’s when he said

‘no.’ * * *”

The court disagreed, stating, “[W]ith regard to Mr. Burns,

whom I already highlighted that I thought was going to be

in, if it came down to the last vote and he was the one, that’s

when he said, ‘No, I won’t do that.’ Which surprised me, but

that—that’s where he was.”

The situation with prospective juror Burns differs

somewhat from those of prospective jurors Hamlin and

Porter. Viewed in context, the voir dire quoted above sug-

gests that Burns’s completed juror questionnaire did not

contain answers that either counsel or the court viewed as

likely requiring excusal under Witherspoon (or, at least, that

some clarifying inquiry was required). In fact, based on the

questionnaire alone, the trial court commented that he had

marked Burns as “in,” meaning that the court thought that

Burns’s answers would not disqualify him on that basis.

But, when questioned at length, Burns’s position either

changed or became more apparent to Burns himself as he

attempted to come to terms with how he in fact would feel

about imposing death as a sentence. He initially suggested

that he would consider imposing the death penalty for a

crime that was sufficiently heinous. Then, when pressed

specifically about what he would do if his was the final vote

on the fourth question, and all the other jurors already had

answered all four questions in favor of the death penalty, he

ultimately declared that he “couldn’t do it.”

416 State v. Turnidge (S059155)

The issue posed by Burns’s answers is similar to the

voir dire issue that this court resolved in State v. Nefstad,

309 Or 523, 533-38, 789 P2d 1326 (1990), cert den, 516 US

1081 (1996), which was also a death penalty case. During

voir dire in Nefstad, Myers, a prospective juror, made equiv-

ocal statements about his ability to apply the law, and, when

pressed, he told the judge that, “[a]t the risk of contradict-

ing [himself] again, [he] could not assure [the judge] that

[he] would not let his feelings interfere.” Id. at 537 (brackets

in original). In concluding that the trial court’s excusal of

Myers was not error under Witherspoon, this court stated:

“The trial court’s question and Myers’s response came

after defendant[’s] counsel and the prosecutor had com-

pleted their examination of Myers. The trial judge, who had

an opportunity to hear Myers’s responses and to observe

his demeanor during the previous questioning, concluded

that Myers’s answers to the judge’s question (and, by impli-

cation, his answers to the prosecutor’s inquiries) should be

believed. In such a case, particularly where the prospective

juror has given admittedly contradictory responses, the

trial court’s conclusion with regard to his ‘ultimate qualifi-

cations is entitled to great weight,’ where the court had the

advantages of ‘observing [his] demeanor, apparent intelli-

gence and candor, all of which are factors in the trial of a

challenge for cause.’ ”

Id. at 537-38 (quoting State v. Brumfield, 104 Or 506, 528-29,

209 P 120 (1922)); see also Witt, 469 US at 426 (because

trial court has opportunity to assess prospective juror’s

demeanor, deference should be paid to trial court in deter-

mining whether prospective juror would be unable to apply

law faithfully and impartially); White v. Wheeler, 577 US

___, 136 S Ct 456, 461, 193 L Ed 2d 384 (2015) (trial court

did not err in excusing prospective juror who initially sug-

gested that he could follow law but eventually stated that

his views would prevent him from imposing death penalty).

As a general rule, we accord “great deference” to the

trial court’s assessment of a prospective juror’s qualifica-

tions, because “the trial court has the advantage of observ-

ing a challenged prospective juror’s demeanor, apparent

intelligence, and candor.” McAnulty, 356 Or at 463 (internal

quotation marks omitted). And we give “greatest deference

Cite as 359 Or 364 (2016) 417

to the trial court when a juror’s answers are contradictory or

unclear.” State v. Compton, 333 Or 274, 286, 39 P3d 833, cert

den, 537 US 841 (2002). In this case, in Burns’s owns words,

he was getting “very emotional” as he discussed his ability

to apply the death penalty, later stating that he was “trip-

ping out.” Given Burns’s inconsistent statements, the state-

ments in the record showing that Burns’s thoughts on the

question evolved over the course of voir dire, and the trial

court’s superior vantage point to assess Burns’s demeanor

and the import of his answers, the trial court properly exer-

cised its discretion in accepting and relying on Burns’s final

statement—that he “could not do it”—as a basis for deter-

mining, under Witherspoon and Witt, that Burns was not

qualified to sit as a juror in this case.

In short, the record supports the trial court’s deter-

mination that Hamlin’s, Porter’s, and Burns’s views on the

death penalty would interfere with their respective abilities

to follow the law. We therefore conclude that the trial court

did not abuse its discretion in excusing those prospective

jurors under the Sixth Amendment, under the standards

that the Supreme Court announced in Witherspoon and Witt.

2.  Destruction of completed juror questionnaires

We turn, then, to the trial court’s order to destroy the

juror questionnaires after voir dire was completed. Defendant

contends that, without Hamlin’s, Porter’s, and Burns’s com-

pleted questionnaires, this court cannot adequately review

whether the trial court properly excused those jurors under

Witherspoon and Witt, which, in turn, amounts to a violation

of the Due Process Clause.26 Defendant makes two alterna-

tive arguments on that point. First, he contends that the

trial court’s decision to destroy the juror questionnaires—

instead of preserving them for the record—constituted per

se reversible error under the Due Process Clause, one that

26

The Fourteenth Amendment to the United States Constitution provides,

in part, “No state shall * * * deprive any person of life, liberty, or property, with-

out due process of law[.]” In arguing that the trial court erred in destroying the

completed juror questionnaires, defendant also offers a general citation to the

Equal Protection Clause of the Fourteenth Amendment (“[n]o state shall * * *

deny to any person within its jurisdiction the equal protection of the laws”), but

he does not connect any part of his argument to that clause or the principles that

it embodies.

418 State v. Turnidge (S059155)

obviates any need for defendant to make a predicate show-

ing of prejudice. Alternatively, even if he must show that the

destruction of the completed questionnaires actually preju-

diced him in this case, defendant argues that he has made

that showing and is therefore entitled to reversal. We first

provide the additional facts necessary to discuss defendant’s

arguments; we then discuss why neither argument is well

taken.27

a.  Additional facts

In advance of voir dire, the prospective jurors were

asked to complete written questionnaires for use by coun-

sel and the trial court during jury selection. The trial court

included on the blank juror questionnaire form an express

statement that, at the conclusion of voir dire, the completed

questionnaires would be destroyed. The court did so because

it thought that the prospective jurors would feel more com-

fortable providing candid written answers if they were

assured that the completed questionnaires would later be

destroyed. Counsel for both parties had an opportunity to

review that form before it was given to the prospective jurors

to complete, but neither party objected or otherwise raised

any concern about the representation on the form that the

completed questionnaires would be destroyed.

Instead, defendant raised an objection to the

destruction only after the jurors already had completed the

questionnaires, arguing at that point that the question-

naires should be preserved for the record on appeal. The

state agreed and likewise urged the trial court not to destroy

the questionnaires. In response, the trial court voiced con-

cern that the questionnaires would “clog the record.” The

27

Defendant raises additional arguments based on ORS 19.420(3) and

Article VII (Amended), section 3, of the Oregon Constitution, contending that

those provisions required the trial court to ensure preservation of an adequate

record for purposes of appellate review. See ORS 19.420(3) (appellate court may

reverse judgment and order new trial, “as justice may require,” whenever it

appears that appeal cannot be prosecuted due to loss or destruction of reporter’s

notes, audio records, exhibits, “or other matter necessary to the prosecution of the

appeal”); Or Const, Art VII (Amended), § 3 (right to jury trial; Supreme Court

may determine, “after consideration of all the matters thus submitted,” whether

judgment should have been rendered or, instead, should be changed). Defendant’s

arguments based on those sources of law are not preserved, however, and so we do

not address them.

Cite as 359 Or 364 (2016) 419

parties then offered to scan the questionnaires to preserve

them in digital form. The court rejected that solution, how-

ever, expressly noting its commitment to the representa-

tion that it already had made to the prospective jurors that

the completed questionnaires would be destroyed after voir

dire. As a solution to the parties’ concerns about ensuring

the adequacy of the record for review, the trial court gave

the parties additional time at the conclusion of voir dire to

review the completed questionnaires to determine what

information, if any, should be read into the record to pre-

serve it for appeal. After that time period passed, pursuant

to the court’s order, the questionnaires were destroyed.

b. Analysis

Defendant first argues that that trial court’s order

to destroy the questionnaires is a ground for per se reversal

because it deprived defendant of a record capable of mean-

ingful appellate review, in violation of defendant’s due pro-

cess protections. He acknowledges that due process usually

requires a showing of prejudice to obtain a reversal of a trial

court judgment based on inadequacy of the record. See, e.g.,

Bransford v. Brown, 806 F2d 83, 86 (6th Cir 1986) (“[T]o

demonstrate denial of a fair appeal, petitioner must show

prejudice resulting from the missing transcripts.”). He con-

tends, however, that some federal courts have indicated that

a defendant’s burden to show prejudice is relieved when the

government’s conduct in destroying or failing to preserve

information for the record is “invidiously motivated” or made

in “bad faith.” See id. at 85-86 (no per se violation of due pro-

cess right to fair appeal when transcript of jury instructions

is simply missing and failure to produce it is not “invidiously

motivated”); see also Arizona v. Youngblood, 488 US 51, 57,

109 S Ct 333, 102 L Ed 2d 281 (1988) (under Due Process

Clause, defendant must show that lost evidence is material

and exculpatory, unless evidence lost in bad faith).

Even if defendant’s understanding of the cited

cases is correct, they do not assist him here. The cases that

defendant cites require a showing of “invidious motivation”

or a similar kind of “bad faith.” Defendant did not at trial,

and does not now, suggest that the trial court in this case

acted with invidious motivation or bad faith in destroying

420 State v. Turnidge (S059155)

the juror questionnaires. Instead, defendant argues that the

questionnaires are missing from the record as a result of the

trial court’s intentional decision to destroy them. The record,

to be sure, demonstrates that the court acted intentionally,

rather than through inadvertence or mistake. But taking

an action intentionally does not necessarily mean that the

action was taken for an improper motive or purpose, such

as to impair the fairness of the proceedings or to prevent

meaningful review of the record by an appellate court. Nor

does the record suggest that the trial court was so motivated

in this case.

Neither party disputes what happened in this

case or why it happened. The blank questionnaire form

represented to the prospective jurors that the completed

questionnaires would be destroyed after voir dire. That

representation was made so that prospective jurors would

provide more forthcoming information relevant to their per-

sonal experiences, backgrounds, and biases—information

of value to the parties and the trial court in any case, but

of particular value in a death penalty case. Both parties

had an opportunity to object to the representation that the

questionnaires would be destroyed; neither party did. When

the trial court later had the questionnaires destroyed, it

did so intentionally, but for one principal reason: To keep

faith with the representation that it already had made to

the prospective jurors and that was in place when they

completed their questionnaires. Nothing in the cases that

defendant cites suggests a legal rationale that would deem

the destruction of the questionnaires in the circumstance of

this case to be a per se violation of due process. We therefore

reject defendant’s argument that, even without a showing

of actual prejudice, he is entitled under the Due Process

Clause to a reversal of the judgment and a remand for a

new trial in this circumstance.

Our conclusion that the trial court’s order destroy-

ing the completed juror questionnaires did not per se deprive

defendant of due process does not mean that we approve

of the trial court’s action. We recognize only that the trial

court was well-intentioned in its reasons for destroying the

questionnaires. We do not endorse as appropriate the rep-

resentation on the form that the questionnaires would be

Cite as 359 Or 364 (2016) 421

destroyed, nor do we endorse the practice of destroying the

questionnaires pursuant to that representation. Trial courts

are most likely to make such a representation and take such

steps in cases of particular sensitivity, such as death penalty

cases. The sensitive nature of such cases, however, makes it

all the more important to preserve all aspects of the record

for review. Administrative concerns of retaining and pre-

serving voluminous paper questionnaires can be readily met

in this digital age through scanning and electronic storage.

Concerns about unduly exposing information that prospec-

tive jurors might be more willing to disclose on paper than

in the public limelight of a courtroom can be accommodated,

if otherwise authorized by law, by sealing the completed

questionnaires after voir dire and advising the prospective

jurors in advance that the questionnaires will be sealed and

later opened, if at all, only pursuant to court order. We are

confident that, through those or other resourceful solutions,

trial courts can appropriately encourage and obtain candid

information from jurors that will aid the parties and the

trial court alike in conducting meaningful voir dire, without

destroying that information and rendering it unavailable for

later review.

The question remains, however, whether defen-

dant was in fact prejudiced by the trial court’s decision to

destroy the jury questionnaires, entitling him to reversal

under the Due Process Clause. To demonstrate prejudice,

defendant must show that the record—without the juror

questionnaires—is insufficient for this court to evalu-

ate whether the trial court properly excused prospective

jurors Hamlin, Porter, and Burns under Witherspoon and

Witt. See Boyd v. Newland, 467 F3d 1139, 1142 (9th Cir

2006), cert den, 550 US 933 (2007) (granting federal writ

of habeas corpus because missing part of transcript ren-

dered it impossible to review petitioner’s claim); Brecht

v. Abrahamson, 507 US 619, 637-38, 113 S Ct 1710, 123

L Ed 2d 353 (1993) (similarly applying “actual prejudice”

standard as whether error “had substantial and injurious

effect or influence” in determining jury’s verdict). As we

will explain, both the nature of defendant’s challenge and

the specific record of this case defeats defendant’s claim of

prejudice.

422 State v. Turnidge (S059155)

The first problem for defendant’s claim of actual

prejudice is that the trial court gave defendant and the

state alike an ample alternative avenue to create the

record that defendant now claims is missing. In particular,

before the completed juror questionnaires were destroyed

pursuant to the trial court’s directive, the court permitted

the parties to review the questionnaires with the specific

objective of supplementing the record, beyond anything

that already had come out during the course of voir dire,

with answers or other information in the questionnaires

that either party thought was important to their case.

Neither party opted to supplement the record pursuant to

the court’s invitation.

The second problem for defendant’s claim of actual

prejudice is that the voir dire itself—which is a matter of

record in this case—was the natural way to explore the

information on the completed juror questionnaires. The

record reveals that the parties in fact used voir dire for that

purpose and provides no basis to conclude that the ques-

tionnaires, if preserved, would have revealed anything

on review that either was not explored during voir dire

or was not effectively superseded by the voir dire record.

Throughout voir dire, during which the parties still had full

access to the questionnaires, counsel for both sides repeat-

edly referred to the answers that various prospective jurors

had given and explored those answers—and made a record

of them—as appropriate to their examinations of the indi-

vidual jurors. That occurred in particular during the voir

dire examination of the three prospective jurors—Hamlin,

Porter, and Burns—that we have already quoted from and

discussed at some length. For example, in the examination

of Hamlin, defense counsel specifically commented that he

had “read [Hamlin’s] juror questionnaire” and went from

that comment to asking Hamlin about his ability to follow

the law. The prosecutor, in turn, referred to the fact that

Hamlin’s answers on the questionnaire suggested that he

was opposed to the death penalty, which prompted the pros-

ecutor to explore Hamlin’s views in greater depth through

voir dire. And likewise, the prosecutor asked Hamlin spe-

cifically about the suggestion on his questionnaire that he

might be able to impose a death sentence if the prosecution

Cite as 359 Or 364 (2016) 423

made “an impassioned argument.” In examining Porter and

Burns, both counsel similarly referred to answers that those

prospective jurors had given on their questionnaires and

explored those answers in meaningful depth in the course

of voir dire.

Thus, the completed juror questionnaires served

their usual purpose in this case: They were a springboard

from which the parties—and, as necessary, the trial court—

could examine and make a record in the depth necessary on

each prospective juror’s background, experiences, attitudes,

and beliefs. In this instance, to the extent that the question-

naires contained information that had bearing on whether

particular prospective jurors held views that would prevent

or substantially impair their performance of their duties as

a juror in a death penalty case, the normal process of voir

dire gave the parties a full opportunity to make a record

of that information. And, because the parties went through

voir dire knowing that the court was not going to preserve

the questionnaires for the record, they had every incentive

to take full advantage of that opportunity. The record before

us has provided us with a meaningful basis to review defen-

dant’s claims that the trial court erred in excusing Hamlin,

Porter, and Burns. We have no reason to conclude that the

questionnaires themselves—had they been preserved—

would have materially aided our review.28

In asserting that the record is insufficient for that

review, and that the destruction of the completed juror ques-

tionnaires therefore prejudiced him, defendant principally

relies on the Ninth Circuit’s decision in Ayala v. Wong, 693

F3d 945 (9th Cir 2012), withdrawn and superseded, 730 F3d

831 (9th Cir 2013), amended and superseded, 756 F3d 656

(9th Cir 2014), rev’d and rem’d sub nom Davis v. Ayala, 576

28

In addition to specific arguments about the excusal of Hamlin, Porter, and

Burns, defendant also makes a generic argument that the destruction of the com-

pleted juror questionnaires led to the improper excusal of 19 additional jurors.

Other than bare citations to the transcript, he includes no information about

the voir dire of those jurors; neither does he make any specific factual or legal

arguments concerning them. We have reviewed the voir dire transcripts in full

and the court’s excusal of those jurors for various reasons. The record provides no

basis to conclude that, if the questionnaires had not been destroyed and therefore

were now available on review, defendant might be able to demonstrate some error

in the excusal of those 19 jurors.

424 State v. Turnidge (S059155)

US ___, 135 S Ct 2187, 192 L Ed 2d 323 (2015).29 Ayala was

a federal habeas corpus case in which the Ninth Circuit

concluded that the fact that completed juror questionnaires

were inexplicably missing from the record violated the peti-

tioner’s right to an adequate record for purposes of review,

and was both error and prejudicial.30

The Ninth Circuit’s holding in Ayala, 756 F3d 656,

does not aid defendant, because of the different kind of chal-

lenge to the excusal of prospective jurors that it involved.

Ayala involved a so-called Batson claim—that is, a claim

that the prosecutor, while articulating a legitimate basis to

challenge a prospective juror, in fact did so for impermissi-

ble discriminatory reasons, such as race. Batson v. Kentucky,

476 US 79, 106 S Ct 1712, 90 L Ed 2d 69 (1986). As the Ninth

Circuit explained, in analyzing a Batson challenge, an appel-

late court must engage in a “comparative juror analysis” to

determine whether a prosecutor’s reasons for challenging a

racially diverse prospective juror were pretextual.31 Ayala,

29

Defendant relies on aspects of the Ninth Circuit’s 2012 and 2013 decisions

in Ayala. The Ninth Circuit issued its 2014 decision after defendant filed his

opening brief in this case.

30

Although the Supreme Court reversed the Ninth Circuit, its ground for

doing so does not inform our resolution of the issue. The California Supreme

Court, on direct appeal in the petitioner’s case, had concluded that the peti-

tioner had not been prejudiced by the loss of the questionnaires. Davis v. Ayala,

576 US at ___, 135 S Ct at 2195. In a subsequent habeas corpus proceeding,

the Ninth Circuit determined instead that petitioner had been prejudiced and

that the California Supreme Court thus had erred. Id. at 2196-97. On review,

the Supreme Court concluded that the Ninth Circuit had incorrectly determined

the prejudice issue anew. The Court determined that, properly framed, the ques-

tion on habeas review was whether the California Supreme Court’s resolution

of the harmless error question had amounted to an unreasonable application of

established federal law and concluded that it had not. Id. at 576 US at ___, 135

S Ct at 2202, 2208. The Court’s answer to that question does not, however, com-

pel the conclusion that the California Supreme Court was required to rule as it

did on direct review of the petitioner’s convictions. Consequently, it is for us to

determine in the first instance whether we can engage in meaningful review of

defendant’s Witherspoon challenge to the excusal of prospective jurors Hamlin,

Porter, and Burns, despite the destruction of the completed juror questionnaires.

If defendant later files for federal habeas corpus relief and, in the course of that

collateral proceeding, challenges our resolution of that issue, it will be a different

question—as it was in Ayala—whether our answer amounts to an unreasonable

application of established federal harmless error law.

31

For example, permissible reasons for challenging a prospective juror might

be related to the juror’s other life experience or prior jury service. See gener-

ally State v. Henderson, 315 Or 1, 8, 843 P2d 859 (1992) (citing representative

cases). But if completed juror questionnaires revealed—as voir dire itself might

Cite as 359 Or 364 (2016) 425

756 F3d at 676; see also Miller-El v. Dretke, 545 US 231, 240-

52, 125 S Ct 2317, 162 L Ed 2d 196 (2005) (engaging in com-

parative juror analysis to consider the petitioner’s Batson

challenge). In addition, in Ayala, some of the prosecution’s

proffered reasons for striking nonwhite jurors referred to

the questionnaires that had been lost. Ayala, 756 F3d at

677. In combination with a related, but different, error that

the Ninth Circuit determined had hampered the petitioner’s

ability to have his Batson challenge meaningfully reviewed,

the Ninth Circuit concluded that the petitioner’s due process

interest in an adequate record for review had been prejudi-

cially harmed. Id. at 672.

This case does not involve a racial-discrimination

challenge under Batson; rather, it involves a death panel-

eligibility challenge under Witherspoon. A Witherspoon chal-

lenge asks a different question than does a Batson challenge.

A Batson challenge asks whether the prosecutor uniformly

requested excusal of all prospective jurors who possessed a

specific trait; such a challenge therefore is inherently com-

parative and entails looking for patterns in the backgrounds

and profiles of the jurors that would reveal any hidden bias

on a prosecutor’s part. A Witherspoon challenge, by con-

trast, asks whether an individual prospective juror’s views

about the death penalty will so hinder that juror’s judgment

that he or she will be unable to follow the oath to consider

the facts, follow the law, and decide the case impartially. A

Witherspoon challenge therefore is not inherently compara-

tive and does not necessarily entail considering the jury pool

in the same aggregate way as does a Batson challenge. In

this particular instance, at least, defendant’s Witherspoon

challenge depends on the specific juror’s responses to the

parties’ and the trial court’s inquiries about each juror’s

individual views on the death penalty. When—as in this

case—the record on appellate review shows that the trial

court excused a prospective juror because that juror indi-

cated on the record an inability to follow the law and, in an

not—that the prosecutor had not challenged white prospective jurors with the

same or similar life experience and prior jury service noted on their question-

naires, while challenging racially diverse prospective jurors on that purported

basis, then the questionnaires themselves, more so than voir dire, would reveal

the potentially pretextual nature of the prosecutor’s explanation.

426 State v. Turnidge (S059155)

appropriate case, to impose the death penalty, the record is

sufficient for appellate review of a Witherspoon challenge.

For such a challenge, no per se prejudice to the defendant

arises from the inability to make a comparative analysis of

prospective jurors based on the aggregate information avail-

able only through their collective questionnaires.

For those reasons, we conclude that the record per-

mits adequate review of defendant’s challenges to the excusal

of prospective jurors Hamlin, Porter, and Burns, and that

the trial court’s decision to destroy the completed question-

naires, while ill-advised, did not prejudice defendant and

does not require reversal under the Due Process Clause.32

D.  Evidence of Prior Bad Acts (Assignment No. 114)

1.  Additional facts

Defendant next argues that the trial court erred in

admitting evidence that, years earlier, he had called in a

bomb threat to a different Woodburn bank. That evidence

came from defendant’s friend, Laughlin, who testified that, in

1995, he had gone to a job site in Woodburn where defendant

was working, to meet defendant for lunch. As they prepared

to leave the job site for a particular restaurant in Woodburn,

defendant told Laughlin that he had just telephoned a bank

near that restaurant, told the bank teller who answered

that there was a bomb in the bank, and directed the teller to

take $50,000 to an outhouse located in a construction area

in the bank’s parking lot. Laughlin and defendant then went

to the restaurant and, from there, watched police vehicles

arrive at the bank and officers examine the outhouse. The

call had been a hoax. The bank involved was not either the

Wells Fargo Bank or the West Coast Bank involved in the

charged 2008 crimes, but it was near those banks.33

32

In another assignment of error, defendant argues that the trial court erred

in advising the prospective jurors—through the statement included on the blank

juror questionnaire form—that the questionnaires would be destroyed following

voir dire. Defendant did not make that argument to the trial court. We therefore

do not address it, except to the extent that, as expressly stated earlier in this

opinion, we disapprove of that practice and expect trial courts in future cases to

find other ways to encourage juror candor without deleting materials from the

record of the case.

33

Testimony in the record, together with street photographs of the area from

the 2008 bombing admitted into evidence, show that the restaurant from which

Cite as 359 Or 364 (2016) 427

Anticipating that the state would seek to have

Laughlin’s testimony of the 1995 incident admitted, defen-

dant moved in limine to exclude it. The state, in its written

response, urged that the evidence was “related to motive,

ability, planning and preparation,” as well as “intent” and

“knowledge,” and it therefore was admissible under OEC

404(3). The state further suggested that the trial court

should admit the evidence without balancing its prejudi-

cial versus probative value, citing OEC 404(4). At a pre-

trial hearing on the matter, the court granted defendant’s

motion and ruled that the evidence would not be admitted.

The court at that time was not persuaded that the evidence

was relevant for anything other than propensity. The court,

however, gave the state leave to ask the court to reconsider

its ruling later, acknowledging that the relevancy of the evi-

dence for one or more nonpropensity purposes might become

more apparent during trial. The court further suggested

that, if it were to later conclude that the evidence was rele-

vant, then the evidence would still be subject to balancing

under OEC 403. Because of the court’s initial pretrial deter-

mination that the evidence was not relevant, the trial court

directed the state not to refer to evidence of the 1995 bomb

threat during voir dire and opening arguments.

During trial, the state sought to present evidence

of the 1995 bomb threat, beginning with an offer of proof,

and defendant objected on several grounds. First, he argued

that the proffered evidence was insufficient to show that the

event actually had occurred. Second, he suggested that the

state was offering the evidence as proof of modus operandi

and identity, and that the 1995 conduct was insufficiently

similar to the 2008 bombing to be relevant for that purpose.

Third, defendant argued that the incident was too remote in

time to be relevant. Finally, defendant argued that the 1995

bomb threat was not relevant to prove intent. Consistently

with its written argument, the state responded that—for

some of the charged crimes—the state had to prove that the

crimes related to an attempt to rob a bank. For those crimes,

defendant and Laughlin watched police arrive and inspect the outhouse outside

the bank that had received the 1995 bomb threat was located across the highway

from the Wells Fargo Bank that received the threatening phone call in this case,

which, in turn, was located next door to the bombed West Coast Bank.

428 State v. Turnidge (S059155)

the state argued that evidence of the 1995 bomb threat was

relevant to prove motive, ability, planning, preparation,

intent, and knowledge. The state further urged that the past

bomb threat was similar to the conduct charged, involved

the same class of victim, and involved, in essence, a “dry

run” of a bank robbery. The parties also debated whether

the probative value of the evidence was significantly out-

weighed by its prejudicial impact, with defendant urging

that it was not, and the state countering that the evidence

was not “unfairly” prejudicial. Both parties relied on the

analysis of admissibility outlined in State v. Johns, 301 Or

535, 725 P2d 312 (1986).

On the basis of those arguments, the trial court

revisited and reversed its pretrial ruling. The trial court

ruled, based on Johns, that evidence of the 1995 bomb threat

was admissible because “it’s similar, it’s unique, and it’s only

separated in time.” Consistently with that ruling, the state

later introduced Laughlin’s testimony describing the 1995

incident during its case-in-chief.

2.  Parties’ arguments on review

On review, the parties renew the arguments that

they made to the trial court. Specifically, both parties rely

significantly on the analytical framework announced in

Johns to argue their respective positions on the admissibil-

ity of the evidence of the 1995 bomb threat.

In addition, both parties also advance supplemen-

tal arguments in light of this court’s recent decision in State

v. Williams, 357 Or 1, 346 P3d 455 (2015), which addressed

OEC 404(4). Relying on Williams, defendant contends that

a balancing exercise under OEC 403 still is required before

uncharged prior bad act evidence may be admitted and that

the admission of such evidence in cases other than those

involving child sexual abuse (at issue in Williams) is still

subject to the analytical framework announced in Johns.

The state, likewise relying on Williams, contends that, in

criminal cases, OEC 404(4) preempts the limitations that

OEC 404(3) otherwise places on the admission of evidence

of “other crimes, wrongs or acts,” and that such evidence is

always admissible under OEC 404(4) if it is relevant—even

for a propensity purpose—as long as its admission does not

Cite as 359 Or 364 (2016) 429

violate due process. Additionally, defendant relies on State

v. Leistiko, 352 Or 172, 282 P3d 857, adh’d to as modified on

recons, 352 Or 622, 292 P3d 522 (2012), to argue that, if the

trial court properly admitted evidence of the 1995 bomb

threat, then the court sua sponte should have instructed

the jury not to consider that evidence without first deter-

mining whether defendant committed the charged acts to

which that evidence was relevant. The state responds by

urging that the limiting instruction required in Leistiko

applies only to evidence that is relevant under a “doctrine

of chances” theory, which is not the relevancy theory that

applied to the evidence of the 1995 bomb threat in this

case.

We address the parties’ respective arguments below.

As we will explain, we ultimately conclude that the trial

court did not err in applying OEC 404(3) and in admitting

the evidence, and that no limiting instruction was required.

3.  Analysis

a.  OEC 404(3), OEC 403, and OEC 404(4); statu-

tory text and general principles

We begin by setting out the evidentiary rules at

issue. OEC 404(3) provides:

“Evidence of other crimes, wrongs or acts is not admissi-

ble to prove the character of a person in order to show that

the person acted in conformity therewith. It may, however,

be admissible for other purposes, such as proof of motive,

opportunity, intent, preparation, plan, knowledge, identity,

or absence of mistake or accident.”

Evidence admitted or excluded under OEC 404(3) is often

referred to as “prior bad acts” evidence. See, e.g., Johns, 301

Or at 555 (citing treatises). OEC 404(3) is an “inclusion-

ary” rule, as opposed to an “exclusionary” rule, expressly

stating that prior bad acts evidence may be admissible as

long as it is relevant for any purpose other than to prove

“propensity”—that is, to prove the character of a person, to

show that the person acted in conformity with that char-

acter. Id. at 548; see generally Williams, 357 Or at 16 n 15

(discussing rationale of general evidentiary ban on so-called

“propensity” evidence).

430 State v. Turnidge (S059155)

If a trial court determines that prior bad acts

evidence is relevant for a purpose other than to estab-

lish that a person has a propensity to act in a particular

way, the admissibility analysis does not necessarily end,

however.34 At least unless OEC 404(4) otherwise directs—

which we discuss next—admissibility still depends on a trial

court determination, in response to a proper motion, that

the probative value of the evidence outweighs the danger of

unfair prejudice under OEC 403. See OEC 403 (“Although

relevant, evidence may be excluded if its probative value is

substantially outweighed by the danger of unfair prejudice,

confusion of the issues, or misleading the jury, or by consid-

erations of undue delay or needless presentation of cumula-

tive evidence.”); Johns, 301 Or at 550 (discussing balancing

analysis required under OEC 403); see also Williams, 357

Or at 19 (“When a party objects, under OEC 403, to ‘other

acts’ evidence offered under OEC 404(4), a trial court must

engage in the balancing anticipated by OEC 403.”).

OEC 404(4), enacted in 1997, Or Laws 1997, ch 313,

§ 29, applies more specifically to prior bad acts evidence in

“criminal actions.” It provides:

“In criminal actions, evidence of other crimes, wrongs

or acts by the defendant is admissible if relevant except as

otherwise provided by:

“(a)  [OEC 406 through 412] and, to the extent

required by the United States Constitution or the Oregon

Constitution, [OEC 403];

“(b)  The rules of evidence relating to privilege and

hearsay;

“(c)  The Oregon Constitution; and

“(d)  The United States Constitution.”

34

And, as explained in other cases, a court’s determination that evidence

is relevant for a nonpropensity purpose in turn may require further analysis,

depending on the asserted purpose. See, e.g.,

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