# State v. Turnidge

> Oregon Supreme Court · May 5, 2016 · 359 Or. 364

URL: https://www.frixlaw.com/law-library/cases/3200800

## Case

- **Full name:** STATE OF OREGON, Respondent, v. JOSHUA ABRAHAM TURNIDGE, Appellant
- **Court:** Oregon Supreme Court
- **Decided:** May 5, 2016
- **Citations:** 359 Or. 364; 374 P.3d 853; 2016 Ore. LEXIS 319
- **Precedential status:** Published
- **Opinion:** Opinion by Linder
- **Judges:** Baldwin, Balmer, Brewer, Kistler, Landau, Linder, Walters
- **Cited by:** 132 later opinions in the Frix Law Library

## Citator (automated)

- **Yellow flag:** Questioned by State v. Tena, 281 Or. App. 57 (2016).
- Negative treatments: 1
- Distinguished by: 0
- Full citator and citing cases: https://www.frixlaw.com/law-library/cases/3200800

## How later opinions describe it (automated extraction)

- holding that the defendant’s “anti-establishment views and, more particularly, his negative views toward law enforcement,” supplied “evidence of his motive for his partic- ipation in the ultimate explosion that killed and injured law enforcement officers,” and that “[t]he infe…
- concluding that the trial court did not abuse its discretion despite not “specifically articulating] its findings in terms of the ‘probative’ versus ‘prejudicial’ value of the evidence,” but did “refer to factors that play into the balancing analysis” and also noted that, if i…
- explaining that causation under the criminal code does not include the concept of "legal cause" or "proximate cause," and that "the only inquiry to be made by the jury, or by a court testing the evidence for sufficiency to go to the jury, is whether there is evidence from whic…
- reasoning that the use of “the past tense form of the verb ‘to be’”—i.e., “was murdered”—“suggests a state of affairs that existed at the conclusion of the criminal episode, not a state of a mind that attached to the defendant’s conduct during the episode”
- explaining that a similar limiting instruction is necessary when “other acts” evidence is condi- tionally relevant—”that is, [when] its relevancy depends on whether the factfinder first agrees that the defendant com- mitted the charged criminal act”

## Opinion text

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

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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/3200800. Public record. Not legal advice.