State v. Johnson

588 December 20, 2023 No. 664

IN THE COURT OF APPEALS OF THE

STATE OF OREGON

STATE OF OREGON,

Plaintiff-Respondent,

v.

MARTIN ALLEN JOHNSON,

Defendant-Appellant.

Washington County Circuit Court

C011654CR; A173046

Eric Butterfield, Judge.

Argued and submitted February 28, 2022.

Rond Chananudech, Deputy Public Defender, argued the

cause for appellant. Also on the briefs was Ernest G. Lannet,

Chief Defender, Criminal Appellate Section, Office of Public

Defense Services.

Timothy A. Sylwester, Assistant Attorney General, and

Michael A. Casper, Assistant Attorney General, argued

the cause for respondent. Also on the brief were Ellen F.

Rosenblum, Attorney General, and Benjamin Gutman,

Solicitor General.

Martin Allen Johnson filed the supplemental briefs pro

se.

Before Ortega, Presiding Judge, and Powers, Judge, and

Kamins, Judge.

POWERS, J.

Affirmed.

Cite as 329 Or App 588 (2023) 589

590 State v. Johnson

POWERS, J.

Defendant appeals his convictions on eight counts

of first-degree murder, ORS 163.107, raising 22 assignments

of error in his opening brief and 34 additional assignments

of error in his pro se supplemental brief. We address below

a number of the assignments of error raised in the opening

brief, as well as some of the arguments made in the pro se

supplemental brief to the extent that they address some of

the same issues. We reject the remaining assignments of

error without discussion. For the reasons set forth below, we

affirm.

These convictions occurred after a retrial of defen-

dant following several lengthy appellate processes, which

we discuss below. Before describing what occurred at trial,

we briefly recount what came before, because many of the

assignments of error—particularly those relating to speedy

trial and law of the case issues—require an understanding

of that earlier context.

I. PRIOR PROCEEDINGS

In February 1998, HF, a 15-year-old girl, was mur-

dered. Defendant quickly became a suspect but fled the

state; he was not apprehended until about a year later in

Florida and was extradited back to Oregon. He was charged

with 11 counts of aggravated murder and convicted after a

jury trial in August 2001 on eight of those counts and sub-

sequently sentenced to death. The Oregon Supreme Court

on automatic and direct review affirmed the convictions and

death sentence in State v. Johnson, 340 Or 319, 131 P3d 173,

cert den, 549 US 1079 (2006) (Johnson I). In its opinion, the

court recounted the state’s evidence—that HF had gone to

defendant’s home in Washington County to play on his com-

puter, that HF’s body was found approximately a day later

near the mouth of the Columbia River in Clatsop County,

that defendant was seen in the area near where HF’s body

was found shortly before the discovery, and that a bloodstain

on the hatchback of defendant’s car matched HF’s DNA. Id.

at 321-22. An autopsy of the victim revealed that she had “a

significant amount of morphine in her system when she died

and that her vaginal cavity contained semen whose DNA

Cite as 329 Or App 588 (2023) 591

matched defendant’s DNA.” Id. at 322. The pathologist who

performed the autopsy opined that HF had died from stran-

gulation. Id. at 321.

As pertinent here, the court in Johnson I consid-

ered, and rejected, defendant’s arguments that evidence

gained from the searches of his house and his computers

should be suppressed. Id. at 323-28. The court also consid-

ered, and rejected, defendant’s argument that prior bad acts

evidence should not have been admitted under OEC 404(3).

As the court explained, the police investigation had revealed

“evidence that defendant habitually preyed on underage

girls, taking them to nightclubs, providing them with alco-

hol and drugs” and engaging in sexual activity with them,

including sexually abusing them while they were rendered

unconscious by drugs that he had provided to them. Id. at

322. Consequently, the state introduced the testimony from

those girls that defendant had drugged them, and some of

them also testified that “defendant had taken advantage of

them sexually while they were under the influence of the

drugs that defendant had administered or supplied.” Id. at

338. The state’s theory of admissibility of that evidence, as

well as the court’s analysis of that theory, is discussed in

more detail below when we address law of the case issues.

After defendant’s convictions and capital sentence

for aggravated murder were affirmed in Johnson I, he sought

post-conviction relief, advancing multiple claims of inade-

quate and ineffective assistance of counsel under the state

and federal constitutions. The post-conviction trial court,

this court in Johnson v. Premo, 277 Or App 225, 370 P3d

553 (2016) (Johnson II), and ultimately the Oregon Supreme

Court in Johnson v. Premo, 361 Or 688, 399 P3d 431 (2017)

(Johnson III), all agreed that defendant had received inad-

equate assistance of counsel. Most notably, although defen-

dant had said that the victim had died of a drug overdose,

Johnson II, 277 Or App at 229, Johnson III, 361 Or at 706,

trial counsel retained an expert witness, a forensic pathol-

ogist, who opined that HF had died from drowning and

who testified in support of the theory of the case put forth

by counsel: The victim had died as a result of defendant

592 State v. Johnson

throwing her off a bridge in Clatsop County, and therefore

venue was improper in Washington County.1 Id. at 690.

The key question in the post-conviction proceeding

was whether trial counsel had made a reasonable tactical

decision in pursuing only that theory or whether trial coun-

sel should have retained a toxicologist to follow up on defen-

dant’s assertion that the victim had died of a drug overdose.

In the post-conviction proceeding, defendant introduced evi-

dence from a forensic pathologist and an anesthesiologist

“that HF had a potentially lethal level of morphine in her

bloodstream” when she died. Id. at 695. In addressing the

claim of inadequate assistance of counsel, the court noted

that one of “the most crucial facts” at issue in the trial was:

“How did the victim die?” Id. at 700-01. The court noted that

counsel had three possible avenues to explore—whether the

victim died of strangulation as the medical examiner opined,

whether she died of drowning as the expert retained by the

defense opined, or whether she died of a drug overdose as

defendant maintained. Importantly, the court observed that

none of those theories would have led to a particularly strong

defense, explaining that “if the theory was death by stran-

gulation, there was ample evidence that petitioner strangled

the victim; if the theory was death by drowning, there was

ample evidence that petitioner drowned the victim, albeit

not in the county in which the prosecution was commenced;

and, if the theory was death by drug overdose, there was

ample evidence that petitioner gave the victim the drugs

that caused the overdose.” Id. at 706. The court did, how-

ever, note that the drug-overdose theory would at least have

supported an argument that the homicide was not commit-

ted intentionally. Id. at 707. The court therefore concluded

that defendant had “demonstrated that counsel’s failure to

1

Defendant’s first trial occurred before the decision in State v. Mills, 354 Or

350, 312 P3d 515 (2013), which overruled a number of cases and held that venue

was not a material element of an offense that had to be proven at trial beyond a

reasonable doubt. In the post-conviction proceeding in this case, the court char-

acterized the venue defense as “weak,” Johnson III, 361 Or at 691, 710, providing

“no reasonable prospect for acquittal,” id. at 710, and further observed that it

“had the significant drawback of essentially acknowledging that petitioner had

committed aggravated murder, and had done so in a particularly callous man-

ner by throwing a youth whom he had sexually assaulted off a bridge.” Id. The

court also recognized that the information that defense counsel had “suggested

no defense that had great merit.” Id.

Cite as 329 Or App 588 (2023) 593

adequately investigate that defense had a tendency to affect

the result of his trial.” Id. at 711. Consequently, defendant

was entitled to a new trial.

II. RETRIAL

Shortly after the case was remanded for retrial after

defendant’s successful post-conviction proceeding, there

was a significant change in the law that affected not only

the charges against defendant but the sentencing options.

The legislature enacted Senate Bill 1013 (2019), removing

numerous theories of murder from the aggravated murder

statute, ORS 163.095, which includes the death penalty as

a potential sentence, and reclassified those theories as first-

degree murder under the newly enacted ORS 163.107, which

removed the death penalty as a potential sentencing option

for the types of murder with which defendant was charged.

Under ORS 163.107(2), upon a conviction for first-degree

murder, a court shall sentence a defendant to life impris-

onment with the possibility of parole after a minimum of

30 years’ imprisonment, or the court may sentence a defen-

dant to life imprisonment without the possibility of parole

if the court puts on the record its reasons for imposing such

a sentence. Thus, that legislative change not only changed

the statute under which defendant was charged but also

removed the death penalty as a potential sentence.

In light of those amendments, the indictment

charging defendant with the murder of HF was amended

by interlineation to allege eight counts of first-degree mur-

der: Counts 1 and 2 (murder committed intentionally and

personally in the course of and in furtherance of the crimes

of first-degree rape and first-degree sexual abuse, ORS

163.107(1)(j)); Counts 3-5 (murder committed intentionally

to conceal the identity of the perpetrator of first-degree

rape, first-degree sexual abuse, and third-degree rape, ORS

163.107(1)(k)); and Counts 6-8 (murder committed intention-

ally in an effort to conceal the commission of first-degree

rape, first-degree sexual abuse, and third-degree rape, ORS

163.107(1)(k)).

On retrial, the state again pursued the theory that

HF died of strangulation, and defendant’s theory—consistent

594 State v. Johnson

with his approach in the post-conviction case—was that

the victim had died of a drug overdose, not strangulation.2

The court ruled on a variety of pretrial matters, only some

of which we describe as they pertain to the issues that we

address on appeal. Defendant filed motions to dismiss on

speedy trial grounds and because the state failed to pre-

serve evidence, motions to suppress evidence, motions to

exclude prior bad acts evidence, and motions concerning the

application of the sentencing provisions of ORS 163.107(2).3

The court denied those motions after considering the sub-

stantive legal arguments raised by defendant. Important to

this appeal, the court denied the motions concerning prior

bad acts evidence and several of the suppression issues after

concluding that the law of the case doctrine precluded recon-

sideration of those issues in light of Johnson I. Thus, the

parties proceeded to try the case with the understanding

that evidence of defendant’s prior actions in drugging and

sexually assaulting other girls would be admitted into evi-

dence. There was undisputed evidence that defendant had

access to liquid morphine, as well as materials related to,

and experience in, how to use morphine.

At the beginning of the second trial, the prosecu-

tor explained the state’s theory of the case—that defendant

gave HF an incapacitating amount of morphine, sexually

assaulted her while she was unconscious, intentionally

strangled her to death while she was unconscious, then dis-

posed of her body. Defendant’s opening statement explained

his theory of the case—that HF had died of a morphine over-

dose, noting that it was undisputed that the amount of mor-

phine in her system was a lethal amount. Acknowledging

defendant’s history of providing drugs to and having sex-

ual contact with teenage girls, defense counsel’s opening

statement noted that none of that evidence indicated that

2

We note that, although the state did primarily argue that defendant caused

the victim’s death by strangulation, in response to defendant’s theory of the case,

the state also argued during its closing argument that, if the victim died of a

drug overdose, the jury could still convict defendant on a theory that he intended

to kill her by giving her drugs to overdose. We discuss that matter in more detail

below.

3

Defendant also assigns error to the manner in which the court responded to

statements he made before trial indicating that he was considering waiving his

right to counsel. We address that matter separately below.

Cite as 329 Or App 588 (2023) 595

defendant had ever been violent toward them. The opening

statement described the strength of the evidence that defen-

dant would provide that the victim had died from a morphine

overdose, implied that it was possible that she had taken

the morphine deliberately, but ultimately suggested that it

was likely that the jury would be able to convict defendant

of a lesser-included offense, specifically mentioning sexual

offenses, as well mentioning manslaughter, which did not

require proof of intentional killing but required proof that

a person caused the death of another under circumstances

manifesting extreme indifference to the value of human life.

Because none of the assignments of error that we

address concern the sufficiency of the evidence against defen-

dant, it is unnecessary to recite a detailed summary of the

evidence presented during the retrial. The evidence of the

basic underlying facts was similar to that presented at the

first trial regarding the victim’s disappearance, the discov-

ery of her body, the evidence connecting her disappearance

and the disposal of her body to defendant, and defendant’s

subsequent flight from the state. Some evidentiary issues,

however, bear mention. First, several of the state’s witnesses

that had testified at defendant’s first trial were not available

to testify at the second trial, and the court admitted their

prior testimony as evidence under OEC 804(3)(a).4 In partic-

ular, Dr. Hartshorne, who had performed the autopsy on HF

and had opined that she died of strangulation, died in the

interim.5 Defendant argued that admission of Hartshorne’s

prior testimony would violate defendant’s confrontation

4

OEC 804(3) provides, in part:

“The following are not excluded by ORS 40.455 [OEC 802] if the declar-

ant is unavailable as a witness:

“(a) Testimony given as a witness at another hearing of the same or a

different proceeding, or in a deposition taken in compliance with law in the

course of the same or another proceeding, if the party against whom the tes-

timony is now offered, or, in a civil action or proceeding a predecessor in

interest, had an opportunity and similar motive to develop the testimony by

direct, cross, or redirect examination.”

ORS 40.465.

5

Defendant also challenges the admissibility of the prior testimony of a

detective who had died in the interim and whose prior testimony was admitted.

However, because defendant did not develop any specific argument on appeal as

to why that testimony was not properly admitted, we reject that assignment of

error.

596 State v. Johnson

rights under the state and federal constitutions, as he had

insufficient opportunity to cross-examine Hartshorne on

the current theory of defense, viz., that the victim had died

of a drug overdose.

Given the nature of the assignments of error we

address on appeal, our primary focus is on the forensic

evidence, as that is the most significant area of difference

between the evidence in the first trial and the evidence

on retrial. In addition to the admission of Hartshorne’s

prior testimony, the state also presented testimony of

Dr. Gunson, who was at the time of the autopsy a medical

examiner for the state and a colleague of Hartshorne, and

who, at Hartshorne’s request, had briefly examined HF’s

body during the autopsy. Gunson believed at the time—

and continued to believe at the time of defendant’s retrial

after reviewing Hartshorne’s autopsy report and prior tes-

timony—that Hartshorne had correctly identified the cause

of death as strangulation. When asked about the presence

of morphine, Gunson explained that, although the total

amount in HF’s system was high enough to cause death,

HF had metabolized nearly 90 percent of it by the time she

died, and HF had injuries consistent with strangulation

that were inflicted while she was still alive.

Defendant also put on evidence concerning the

cause of HF’s death. Dr. Vincenzi, a pharmacologist, tes-

tified that he had reviewed the toxicology report that was

done after the victim’s death.6 He explained that the amount

of morphine in HF’s blood was significantly greater than the

average lethal dose. He also noted that the tests performed

were presumptively positive for benzodiazepines, which

are minor tranquilizers, as well as marijuana, but that the

presence and quantity of those drugs were not confirmed.

Vincenzi opined that, although the interaction of morphine

with marijuana was not highly significant, the same was

not true as for benzodiazepines, which could increase the

toxicity of morphine. He believed that HF had ingested the

morphine four to six hours before her death but acknowl-

edged that people would usually die more quickly after such

6

As discussed below, by the time of the second trial, the biological materials

used to create the report were no longer available.

Cite as 329 Or App 588 (2023) 597

a large overdose. Another defense witness, Dr. Wigren, a

forensic pathologist, also opined that HF had died of a mor-

phine overdose. Wigren articulated his disagreement with

the state’s evidence that any strangulation had occurred,

opining that the injuries to HF’s neck were likely the result

of the way her body was positioned when she died, or that

the injuries occurred when or after her body was thrown

from the bridge. He also reviewed HF’s medical and mental

health records and opined that she may have committed sui-

cide or accidentally overdosed on morphine on her own. There

was evidence presented concerning HF’s mental health, and

evidence that HF’s girlfriend had attempted to commit sui-

cide shortly before HF’s death. The defense also presented

evidence from Dr. Haddix, another forensic pathologist,

who testified as to perceived inadequacies in Hartshorne’s

performance and documentation of the autopsy but did not

opine as to the cause of HF’s death.

In closing argument, after recounting the evidence,

the prosecutor emphasized the evidence of defendant hav-

ing drugged and sexually assaulted other girls and sug-

gested that defendant had gone a step further in this case

because he knew that HF was not interested in having sex

with him because she was a lesbian, and therefore he inten-

tionally killed her. The prosecutor emphasized the strength

of the state’s evidence that the cause of death was stran-

gulation and suggested that defendant’s actions after HF’s

death were consistent with him having intentionally raped

and murdered her and not consistent with an accidental

overdose.

Defendant’s closing argument focused on the evi-

dence that HF had died from a morphine overdose and sug-

gested that what happened was not essentially different

than defendant’s encounters with other girls that he had

befriended, and that defendant’s interactions with them,

while reprehensible, were not physically violent. Defendant’s

closing argument emphasized that the state’s theory—that

defendant had deliberately killed the victim by strangling

her—was inconsistent with his past behavior. Noting that it

was undisputed that the amount of morphine in the victim’s

system was a potentially lethal amount, defendant’s closing

598 State v. Johnson

argument essentially framed the case as whether the state

had proved beyond a reasonable doubt that the victim

had died of strangulation before the morphine killed her.

Defendant’s closing argument pointed to evidence that HF

had a history not only of drug use but also a suicide attempt.

Acknowledging defendant’s history of drugging girls, the

closing argument reiterated the difference between inten-

tional murder and reckless conduct that could support a

manslaughter conviction.

In rebuttal, the state argued that it had not spe-

cifically alleged, nor was it required to prove, that HF had

died from strangulation. Rather, the state remonstrated

that it merely needed to prove that defendant had intention-

ally caused HF’s death and that the question for the jury

to answer was whether defendant had intentionally given

her a high dose of morphine “that was in all likelihood a

lethal dose, and did [defendant] do that on purpose in order

to cause her death?” The state noted evidence that defen-

dant had the medical knowledge to understand dosage in

addition to his experience drugging other girls. The state

contended: “Whether you find the Defendant intentionally

caused [HF’s] death by drugging her, intentionally caused

[HF’s] death by strangling her, or intentionally caused

[HF’s] death by a combination of the two, the fact remains

that [defendant] did exactly what he intended to do.”

The court then instructed the jury, which returned

a verdict of guilty on all eight counts of first-degree mur-

der. The jury returned its verdict on Friday, November 8,

2019, and it was to reconvene the following Wednesday

for the sentencing proceedings. The following Tuesday,

November 12, defendant filed a motion for a mistrial, which

was argued when the proceedings commenced the follow-

ing day. Defendant requested that the court either grant a

mistrial or require the jury to reconvene to deliberate on its

guilt-phase verdict so that it could be determined whether

the jurors had unanimously agreed on whether the victim

died of strangulation or of a drug overdose. More specifi-

cally, defendant argued that, because the state added a new

theory of the case during its rebuttal argument—that defen-

dant may have intentionally killed the victim via morphine

Cite as 329 Or App 588 (2023) 599

overdose rather than strangulation—the defense could not

have submitted a jury-concurrence instruction in advance

because it was unaware that the state would add the new

theory at that point. The court denied defendant’s motion.

For the sentencing phase of the trial, after argu-

ments from the parties about how to proceed, the court

submitted sentencing-enhancement factors to the jury to

consider. The court instructed the jury to consider spe-

cific sentence-enhancement factors, and the jury returned

findings on four factors: that defendant knew or had rea-

son to know of the victim’s particular vulnerability, which

increased the harm or threat of harm caused by the crim-

inal conduct; that prior sanctions had not deterred defen-

dant from re-offending; that defendant was on supervision

for another conviction at the time of the offense; that future

efforts to rehabilitate defendant would not be successful;

and that there was a need to ensure the security of the

public. The court then imposed a sentence of life without

parole based on the jury’s findings of enhancement factors.

Defendant timely appeals.

III. ARGUMENTS ON APPEAL

As noted, defendant raises through counsel and by

pro se supplemental briefing a great number of assignments

of error. We have considered each fully, and other than those

specifically discussed in the analysis below, we reject them

without further discussion. We note that a recurrent theme

throughout many of the pro se arguments is what defendant

perceives as inadequacies in his counsel’s legal arguments,

as well as defendant’s attempts to supplement his own argu-

ments with materials that are not in this record.7 Those

issues and arguments are not suitable for consideration on

7

In his pro se brief, defendant asks us to take judicial notice of numerous

other cases that he has filed concerning matters related to his conviction, includ-

ing factual matters raised in those cases. Some of those cases are mentioned in

footnotes 9 and 13, below. Although we reference the existence of some of those

appeals and the legal arguments that were made in them, we cannot take judicial

notice of facts asserted in the files of those cases. See Thompson v. Telephone &

Data Systems Inc., 130 Or App 302, 881 P2d 819, adh’d to as modified on recons,

132 Or App 103, 107, 888 P2d 16 (1994) (explaining that “there is a distinction

between judicially noticing the existence of a court record and noticing the truth

of the contents of that record, much less the truth of the contents of a document

that happens to be appended to the court record”).

600 State v. Johnson

direct appeal in a criminal case. See, e.g., State v. Rhodes,

309 Or App 318, 319 n 1, 481 P3d 412 (2021) (“Ineffective

assistance of counsel claims must be raised and resolved

under the post-conviction relief procedure established by

statute in Oregon and not on direct appeal.”).

We begin with the assignments of error that could

be potentially dispositive, viz., those that could lead to an

outright reversal of defendant’s convictions with no need

for retrial, because if any of those arguments are success-

ful that would obviate the need to address the remaining

issues. Those assignments of error concern the denial of

defendant’s motion to dismiss the case on constitutional

speedy-trial grounds and the denial of his motion to dis-

miss the case due to the state’s failure to preserve forensic

evidence.

A. Challenges to the Denials of Defendant’s Motions to

Dismiss

1. Speedy trial

On appeal, defendant contends that the trial court

erred in denying his motion to dismiss for lack of a speedy

trial, citing Article I, section 10, of the Oregon Constitution,

and the Sixth Amendment to the United States Constitution

(although he does not make a separate argument under the

federal constitution).8 Citing State v. Harberts, 331 Or 72,

88, 11 P3d 641 (2000), defendant observes that the inquiry

under Article I, section 10, involves an assessment of the

length of the delay, the reasons for the delay, and the preju-

dice to the defendant. He notes that, if the length of the delay

is “substantially greater than the average, inquiry into the

remaining two factors is triggered,” State v. Mende, 304 Or

18, 23-24, 741 P2d 496 (1987), but if the delay is “manifestly

excessive” and “shocks the imagination and conscience,” the

delay alone is sufficient to establish a violation of Article I,

section 10. State v. Vawter, 236 Or 85, 96, 386 P2d 915 (1963).

8

Article I, section 10, provides that, “No court shall be secret, but justice

shall be administered, openly and without purchase, completely and without

delay, and every man shall have remedy by due course of law for injury done him

in his person, property, or reputation.” The Sixth Amendment provides, in part,

“In all criminal prosecutions, the accused shall enjoy the right to a speedy and

public trial[.]”

Cite as 329 Or App 588 (2023) 601

Noting that the burden is on the state, defendant

argues that the delay in this case was the 20 years between

his indictment and his retrial and contends that that length

of time is “manifestly excessive” such that the charges

against him should have been dismissed because it “shocks

the conscience.” Defendant cites United States v. Chase, 135

F Supp 230, 233 (ND Ill 1955), which was mentioned in

Harberts, 331 Or at 86, and argues that that case is compa-

rable to his case.

The difficulty with defendant’s argument and the

comparison to Chase is that, unlike in Chase, the state did

not delay for 20 years before trying defendant. Similarly,

this case is not comparable with Harberts, which concerned

a lengthy delay that occurred pretrial because the state

had taken multiple interlocutory appeals of pretrial rulings

and where the court rejected the state’s argument that “no

delay caused by interlocutory appeals may be considered in

analyzing a defendant’s speedy trial claim under Article I,

section 10.” 331 Or at 90 (emphasis omitted). That is, those

cases are distinguishable from the present case because

defendant was tried and convicted within a reasonable time.

To reiterate the timeline, defendant was indicted in

1999, extradited from Florida, then tried and convicted in

2001. On automatic and direct review—there were no inter-

locutory appeals—the Oregon Supreme Court in Johnson I

affirmed his convictions in 2006. Thus, there is no way to

view the time between 2001 and 2006 as a “delay” by the

state in trying defendant. Indeed, it had already tried defen-

dant and obtained a conviction. The same is true for the

period of time from 2006, after the judgment of conviction

and sentence of death had been affirmed and then after the

commencement of the post-conviction proceeding was initi-

ated, until 2013 when the post-conviction court vacated the

convictions and sentence. The state cannot be faulted for

failing to try defendant between the years of 2001 and 2013:

It could not do so because he had already been convicted.

To be sure, the state from 2013 to 2017 pursued appeals

from the post-conviction court’s grant of relief, which were

unsuccessful, and that relief ultimately was upheld result-

ing in a judgment, after which the state was in the position

602 State v. Johnson

to try defendant again. In sum, 12 of the 20 years defendant

complains of—2001 to 2013—were years when the state had

no ability to try or retry him because he already stood con-

victed of the offenses. See, e.g., State v. Sisneros, 84 Or App

306, 309, 734 P2d 355, rev den, 303 Or 455 (1987) (reasoning

that the defendant could not claim denial of a speedy trial

on the basis of “the time that elapsed between her conviction

in 1980 and the post-conviction court’s judgment in 1986”

because the state lacked the ability to retry her “until she

had sought and received post-conviction relief”).

As for the remaining eight years, defendant makes

no specific arguments that any portion of that time involved

unreasonable delay by the state, and our review of the

record reveals no such unreasonable delay. Both the time

before 2001, and the time between 2017 when defendant

was able to be retried and 2019 when his retrial occurred,

mostly involved normal delays addressing pretrial matters

in what was—during the vast majority of that time—an

aggravated murder prosecution, such as dealing with sup-

pression motions, motions for admission or exclusion of evi-

dence, motions to dismiss, as well as time needed by counsel

to prepare for trial. Defendant acknowledges that he effec-

tively consented to the delay that occurred before May 2000.

Further, the record establishes that the state was prepared

to go to trial in the fall of 2018, which was a year earlier

than defense counsel said that the defense could be ready.

Thus, the final year between October 2018 and when the

trial commenced in October 2019 could not be considered

unreasonable delay by the state.

We recognize that the time between 2013 and

2017, when the state was pursuing its appeal from the

post-conviction court’s ruling, could arguably be attribut-

able to the state under the circumstances. Although we are

unaware of any case law that specifically addresses such an

issue in the context of a post-conviction appeal, even if we

were to assume for the sake of argument that the rationale

of Harberts applies, that assumption does not help defen-

dant’s position. In Harberts, the court noted the weak legal

justification for one of the state’s pretrial appeals and the

numerous delays by the state during the appellate process.

Cite as 329 Or App 588 (2023) 603

331 Or at 91-92. Here, by contrast, nothing in Johnson II or

Johnson III suggests that the state’s legal position on appeal

was untenable or rested on a weak legal justification; indeed,

quite the opposite, even though the state did not ultimately

prevail. See Johnson III, 361 Or at 700 (observing that “the

question whether counsel provided inadequate assistance is

a close one”). Moreover, given the amount of appellate liti-

gation surrounding the post-conviction case, we cannot con-

clude that the state was responsible for any significant delay

in completing the appellate process. See 329 Or App 606

n 9, 616-17 n 13 (recounting some of the litigation history

and related litigation). Thus, because defendant makes no

specific argument that the state’s reasons for any portion of

that delay were not adequate, we reject defendant’s speedy

trial assignment of error without further discussion.

2. Loss of evidence

On appeal, defendant argues that the trial court

erred in failing to dismiss the case because materials

underlying some of the forensic evidence were unavailable

to be tested in preparation for the retrial. The primary focus

of this argument is that, although the autopsy included a

toxicology report that indicated that HF had not only a spe-

cific quantity of morphine in her system, but unquantified

amounts of benzodiazepines and cannabinoids, the biologi-

cal materials on which that report was based were no longer

available for testing by the defense and thus the defense was

unable to quantify the amounts of the other drugs in HF’s

system at the time of death. Defendant also advances an

argument relating to a pipe found on HF’s body that was not

retained, contending that it might have contained residue of

drugs HF consumed. As explained below, the trial court did

not err.

Defendant asserts that, because the compulsory

process clauses of both Article I, section 11, and the Sixth

Amendment, guarantee a defendant the right to access

favorable and material exculpatory evidence, the state vio-

lated his rights by failing to preserve the relevant evidence

taken in 1998 and make it available for his retrial in 2019.

The state responds that, under the policy in place before

2009, such materials were routinely discarded after two

604 State v. Johnson

years, and that on the facts of this case, defendant cannot

show that his compulsory process rights were violated. Both

parties acknowledge that State v. Faunce, 251 Or App 58, 67,

282 P3d 960 (2012), rev den, 353 Or 203 (2013), sets out the

applicable analysis, which is the same under both the state

and federal constitutions:

“To establish a due process [or compulsory process] viola-

tion resulting from the state’s failure to preserve evidence,

a defendant need not show that the state acted in bad faith

if it ‘was apparent before the evidence was destroyed’ that

the evidence was favorable and was ‘of such a nature that

the defendant would be unable to obtain comparable evi-

dence by other reasonably available means.’ State ex rel

Juv. Dept. v. Huskey, 130 Or App 419, 423, 882 P2d 1127

(1994), rev den, 320 Or 567 (1995) (quoting California v.

Trombetta, 467 US 479, 488, 104 S Ct 2528, 81 L Ed 2d 413

(1984) (internal quotation marks omitted)). Favorable evi-

dence for a defendant can be either exculpatory or impeach-

ing. State v. Deloretto, 221 Or App 309, 321, 189 P3d 1243

(2008), rev den, 346 Or 66 (2009).

“The requirements are different when the defendant

claims that the state failed to preserve merely ‘potentially

useful’ evidence, such as ‘evidentiary material of which no

more can be said than that it could have been subjected to

tests, the results of which might have exonerated the defen-

dant.’ Arizona v. Youngblood, 488 US 51, 57, 109 S Ct 333,

102 L Ed 2d 281 (1988). In that event, the defendant must

show that the state acted in bad faith. Id. at 58. Thus, ‘the

applicability of the bad-faith requirement in Youngblood

depend[s] * * * on the distinction between “material excul-

patory” evidence and “potentially useful” evidence.’ Illinois

v. Fisher, 540 US 544, 549, 124 S Ct 1200, 157 L Ed 2d 1060

(2004).”

(Ellipsis in Faunce.)

In this case, defendant first argues that the unavail-

able evidence had exculpatory value and that it was “readily

apparent” before it was destroyed that it was exculpatory,

because it was relevant to whether HF died of a drug over-

dose. We disagree with defendant’s argument. The record

indicates that the materials were routinely discarded at

some time after defendant had been convicted in 2001, and

it was discovered during the post-conviction proceeding in

Cite as 329 Or App 588 (2023) 605

2009 that they were no longer available. As described above,

in defendant’s original criminal trial, only two theories

surrounding HF’s death were at issue, whether she died of

strangulation or whether she died of drowning. Given those

theories, there is no reason to conclude that it would have

been “readily apparent” to the state before the materials

were discarded that the presence of unquantified amounts

of benzodiazepines and cannabinoids in HF’s system or her

possession of a pipe had any particular significance with

respect to the cause of her death.

Defendant argues alternatively that the discarded

biological materials were “potentially useful,” such that the

results of further testing “might have exonerated the defen-

dant,” quoting Youngblood, 488 US at 57, and that the state

destroyed the evidence “in bad faith.” Defendant’s “bad faith”

argument, however, is premised on the assumption that the

state “should have known” the potential relevance of other

drugs in the victim’s body that could have “synergistically

affected the morphine in HF’s body.” The state responds

that, because defendant did not argue before the trial court

that it had acted in bad faith, we should not consider the

argument now.

After reviewing the parties’ arguments and the

record, we conclude that, even if the argument was pre-

served for our review, the argument lacks merits for several

reasons. First, the trial court found that the state did not act

in bad faith, which is reviewed as a question of fact. See, e.g.,

State v. Walker, 323 Or App 234, 241-42, 522 P3d 868 (2022)

(so stating). Defendant’s particular arguments advanced on

appeal do not disturb the trial court’s finding in that regard.

Second, defendant’s arguments lack merit, because his con-

tention is essentially the same as one that we described—

and rejected—above, viz., that the potential relevance of the

evidence should have been obvious. Moreover, defendant pro-

vides no legal authority for the assumption underlying his

argument that “should have been obvious” equates to “bad

faith” as that term is used in this context. See, e.g., Faunce,

251 Or App at 70 (explaining that “the state’s negligence

does not amount to bad faith for failing to preserve poten-

tially useful evidence”). Accordingly, we reject defendant’s

606 State v. Johnson

bad-faith argument and conclude that the trial court did not

err in denying the motion to dismiss for failure to preserve

exculpatory evidence.

B. Issues Surrounding Self-Representation

1. Background

In November 2017, shortly after the post-conviction

judgment had become final, the trial court established that

defense counsel had been appointed but one of those coun-

sel told the court that, although they were appointed by

the court and assigned to the case by the Office of Public

Defense Services, defendant had not yet asked for counsel.

Defendant interjected, “I’m pro se, apparently.” After a short

discussion about whether the judge had a potential conflict,

the court asked defendant if he intended to represent him-

self. Defendant said that he did intend to represent himself

and he further explained that appointed counsel had agreed

to be standby or legal advisors. When the court asked that

defendant be provided with a waiver-of-counsel form, defen-

dant responded, “I’m not prepared to do a waiver of coun-

sel yet because we are going to need longer time, you know,

to be advised of risks and dangers * * *.” The court advised

that defendant needed to consider the form and whether he

wanted to proceed pro se, indicating that it need not be done

at that point. The prosecutor interjected, noting that defen-

dant had filed over 90 pro se motions in his post-conviction

case and suggesting that the court give defendant a week to

consider the matter and consult with his appointed counsel

before determining how he intended to proceed. Noting that

defendant had filed numerous pro se motions with the court

during the pendency of the post-conviction case, the prosecu-

tor took the position that defendant should not have hybrid

representation, viz., being represented by counsel at some

points and being pro se at others.9 The trial court set over

the case for a week, informing defendant that at the next

hearing, “we will have a more complete conversation about

9

See, e.g., Johnson v. Premo, 355 Or 866, 868, 333 P3d 288 (2014) (noting that

defendant—then petitioner—had “filed more than 100 pro se motions, totaling

more than 6,000 single-spaced pages of argument” in the post-conviction trial

court while represented by counsel and that he filed numerous pro se motions on

appeal while represented by counsel, and concluding that he was not entitled to

hybrid representation in the course of his post-conviction appeal).

Cite as 329 Or App 588 (2023) 607

whether or not you want to represent yourself.” Defendant

suggested that he would need four hours for the upcoming

hearing. The court declined to schedule a four-hour hearing,

commenting that the hearing “will take as long as I decide it

will take.”

The following week, which was still in November 2017,

the hearing began with defense counsel and the court dis-

cussing the right to counsel and waiver of counsel in capital

cases (because at that point in time, the charges against

defendant were still charges of aggravated murder) and the

role that counsel would play if defendant opted to proceed

pro se. Counsel noted that, under ORS 135.045(1)(c) in a cap-

ital case, unlike in most criminal cases, “[t]he court may

decline to accept the waiver of counsel if the defendant is

charged with a capital offense,” and the parties discussed

with the court how that statute might comport with the

constitutional rights to self-representation. Thereafter, the

court asked defendant if he did in fact want to represent

himself, and defendant responded that he wished to discuss

an email he had sent about disqualifying the judge because

defendant intended to call the judge as a witness at trial.

The court responded, “We are not going to get to that ques-

tion until we decide who is representing you.” Defendant con-

tinued to pursue the topic of removing the judge, discussing

whether it would be possible to remove the judge by filing

an affidavit and recognizing that there would be a timing

problem with doing so.

The court continued to ask defendant if he wished

to be represented by counsel. Defendant responded that he

had “some questions about my representation for myself.”

The court indicated that, if defendant was not asking to

represent himself at that point, the court was going to pro-

ceed with appointed counsel representing him. Defendant

said that he was trying to make an informed decision, and

the court stated that he had had a week to talk with his

lawyers and review the form concerning self-representation.

Defendant indicated that he had read the form but had not

completed it because he did not believe it was adequate.

The court said that the next step was for him to complete

the form, and that defendant could have another week to

608 State v. Johnson

consult with his lawyers to decide or he could speak with

his lawyers in the jury room about it. Defendant told the

court, “I would like to be advised of the dangers and risks

of representing myself.” When asked if he had discussed

it with his attorneys, defendant stated that they could not

answer all his questions. Defendant reiterated that he had

requested a four-hour hearing and stated, “I have 38 ques-

tions that I—40 questions I need answered by the Court, for

you to please explain the risks and dangers of me represent-

ing myself.” The court explained that once defendant had

completed the form, it would proceed; defendant, however,

refused to do so, saying variously that it was incomplete and

“not adequate because it doesn’t advise me of all the risks

and dangers,” and that it did not “comply with the law.” He

argued that “[i]t has to be verbal,” and that “[a]ll the case

law says it’s—you know—you have to advise me.” He quoted

from Faretta v. California, 422 US 806, 835, 95 S Ct 2525, 45

L Ed 2d 562 (1975), that a defendant should be “made aware

of the dangers and disadvantages of self-representation”

and that a record needed to be made concerning the choice

of self-representation.10 The court concluded it would set

over the matter again to allow defendant additional time to

discuss the matter with his appointed lawyers.

At the following hearing, which was held in

December 2017, the trial court and counsel discussed a pro-

posed schedule for filing various motions, and defense coun-

sel indicated that the dates worked for counsel but that defen-

dant did not agree with the schedule and that he wished to

waive future court appearances. Defendant made no verbal

responses to the court when asked questions during that hear-

ing; he did, however, indicate through nonverbal responses—

such as shaking his head—whether he agreed or disagreed.

The court asked defendant whether he discussed the issue

with his attorneys, whether he had enough time to discuss

the pros and cons of his decision, and whether he wished to

waive future appearances, and defendant responded affirma-

tively to each question with a nonverbal response that the

court verbalized as “[h]e’s indicating yes.”

10

We note that Faretta was discussed at length in State v. Meyrick, 313 Or

125, 136-38, 831 P3d 666 (1992), on which much of Oregon’s case law regarding

the dangers of self-representation is based.

Cite as 329 Or App 588 (2023) 609

The parties then proceeded to discuss scheduling:

The state reported that it would be ready to proceed to trial

in 10 months, and defense counsel wanted more time, not-

ing that the ABA guidelines for trial preparation in this

type of case outlined that two years would be appropriate

and that the defense would not be ready to proceed until

October 2019.

The next hearing was in February 2019, when

defense counsel told the court that defendant still did not

wish to be present in court but that he wanted the court

to remove his attorneys. The court rescheduled the hear-

ing on that motion to procure defendant’s presence. At the

rescheduled hearing, counsel told the court that they moved

to withdraw based on defendant’s request that they not rep-

resent him. The court read defendant’s written submission,

noted that it did not provide reasons why counsel should be

removed, then asked defendant directly if he wanted coun-

sel removed. Defendant gave the court equivocal answers,

noting that he had not asked for new counsel but wanted

to reserve his right to file a motion to remove counsel

later, and also telling the court that he believed that the

court had already made its decision about his representa-

tion. The court clarified that defendant was talking about

the hearings where, as the court described, defendant was

“unable or unwilling to waive [his] right to an attorney,” to

which defendant responded, “18 months ago.” As the hear-

ing progressed, defendant said nothing further about self-

representation, although he did articulate a disagreement

(without elaboration) with the prosecutor’s description of his

answers as indicating that he was currently satisfied with

his attorneys but would file a motion to have them removed

in the future if he was dissatisfied with them.

At a subsequent hearing in April 2019 where the

trial court addressed motions concerning venue and pretrial

release, the state brought up the matter from the earlier

hearings regarding whether defendant was satisfied with

his counsel or wanted to represent himself. The prosecutor

recounted that defendant had not provided direct answers

to the court’s questions about whether he wanted to repre-

sent himself. The prosecutor further recalled that, when the

610 State v. Johnson

prosecutor was discussing the matter with defense coun-

sel, defendant interjected that he had not answered the

court’s questions “because he felt like the issue had been

set up for him to have a legitimate appellate issue based

on the Court’s original reasoning.” The prosecutor asserted

that “he’s intentionally choosing not to answer that ques-

tion because he likes the way the issue is framed now with

the record we have for the—for the Supreme Court down

the road.” The court agreed: “Well, I think his whole goal is

to make it murky, and I think it’s been that way since day

one, and it’s entirely clear to me that the answers that he

gives me to my questions from day one are designed to make

it murky and to not really answer questions, so I don’t see

any sense in having any conversation with [defendant] going

forward.”

2. Arguments on appeal and analysis

On appeal, defendant contends that the trial court’s

manner of dealing with what he describes as his unequivocal

requests to represent himself was inadequate. He asserts that

he unambiguously invoked his right to self-representation,

and that the court erred in failing to conduct a colloquy

with him to explain the risks and disadvantages of self-

representation. To the extent that defendant’s arguments—

and the state’s response—are about the prosecutor’s later

representations about defendant’s intentions and the court’s

agreement that defendant’s refusal to answer the court’s

questions were to make the matter of self-representation

(or his dissatisfaction with counsel) “murky,” that focus is

misplaced. The focus is not on what defendant’s unstated

motives might have been for saying and doing what he did;

the focus is on what was communicated—by the court and

by defendant—about self-representation. With that in mind,

we undertake an examination as to whether the trial court

committed legal error in addressing the issues that defen-

dant raised.

The right to represent oneself at trial is a coun-

terpart to the right to be represented by counsel at trial.

State v. Hightower, 361 Or 412, 416, 393 P3d 224 (2017). A

waiver of the right to counsel is, in effect, an assertion of

the right to proceed pro se. A waiver of the right to counsel

Cite as 329 Or App 588 (2023) 611

or the counterpart right to self-representation, like other

waivers of constitutional rights, must be an intentional

waiver of a known right. State v. Meyrick, 313 Or 125, 132,

831 P2d 666 (1992). An assessment of whether a waiver is

intentional and knowing “will depend on the particular

circumstances of each case, including the defendant’s age,

education, experience, and mental capacity; the charge

(whether complicated or simple); the possible defenses avail-

able; and other relevant factors.” Id. In determining whether

a defendant is intentionally relinquishing a known right,

the trial court “should focus on what the defendant knows

and understands.” Id. (Emphasis omitted.) To evaluate

what a defendant knows and understands on this matter,

the preferred means is a “colloquy” between the court and

the defendant in which the court explains the dangers and

disadvantages of self-representation. Id. at 133. However,

a “catechism” is not required. Id. at 134. How a court

chooses to address a defendant’s request concerning self-

representation is “subject to appellate review for an abuse of

discretion.” Hightower, 361 Or at 418.11 As explained below,

we conclude that the court did not abuse its discretion in

addressing the self-representation issue as it arose in the

proceedings before the trial court on retrial. That is because

the requests were equivocal, confusing, and—at least at one

point—conditioned on the court subjecting itself to a series

of prepared interrogatories before defendant was even will-

ing to say whether he wished to waive the right to counsel

and proceed pro se. As described above, defendant’s state-

ments throughout the proceedings revealed that he already

had extensive knowledge of the risks of self-representation

when he implicitly chose to proceed with counsel by refusing

11

The court further explained the standard of review:

“[A]lthough the trial court’s decision in response to a request for self-

representation is ordinarily a matter of discretion, in some cases, that deci-

sion may be predicated on certain subsidiary determinations—either find-

ings of fact or conclusions of law—that trigger their own standards of review.

So, for example, if a court’s decision as to whether to grant a request for

self-representation turns on the court’s legal conclusions as to the scope of the

right, that determination is reviewed for errors of law.”

Hightower, 361 Or at 421 (citations omitted); see also State v. Ashbaugh, 317

Or App 767, 772, 505 P3d 1015 (2022) (reviewing a trial court’s decision around

the scope of the right of self-representation for legal error and the denial of the

right of self-representation for an abuse of discretion).

612 State v. Johnson

to address the court’s questions about whether he wished to

represent himself.

As an initial matter, to the extent that defendant

points to several places in the record where he specifically

told the court that he wanted to represent himself and

argues that he, therefore, made “unequivocal” requests, we

reject defendant’s contention. Whether or not a request is

unequivocal must be evaluated in context. Here, each time

defendant made what he now describes on appeal as an

“unequivocal” request, he proceeded to equivocate about

whether he did, in fact, want to represent himself. We

understand defendant’s position that his requests should be

viewed as “unequivocal” as an attempt to try to distinguish

this case from the situation in State v. Brooks, 301 Or App

419, 429, 456 P3d 665 (2019), vac’d on other grounds, 368

Or 168, 486 P3d 794 (2021), which held that where a defen-

dant makes an equivocal request for self-representation, the

court may defer consideration of it to have the defendant

consult with counsel about the matter. In our view, Brooks

supports a conclusion that defendant’s requests in this

case should not be viewed as unequivocal—or said differ-

ently, that defendant’s requests in context were equivocal.

We noted in Brooks that the defendant “made an initially

unequivocal request for self-representation,” but in light of

the colloquy that followed where counsel agreed to talk to

the defendant and have the matter considered again a few

days later, “defendant’s initial unequivocal invocation of his

right to self-representation became an equivocal invocation.”

Id. at 427-28 (emphasis omitted). As described above, none

of defendant’s requests in this case were unequivocal; but,

even if they were so viewed, the context of the proceedings

shows that any request became an equivocal invocation.

On appeal, defendant further asserts, citing State v.

Miller, 254 Or App 514, 295 P3d 158 (2013), and State v. Music,

305 Or App 13, 467 P3d 812 (2020), that because he made

requests to represent himself, he triggered the trial court’s

“obligation” to “make the Miller inquiry,” in which the court

must determine whether the defendant’s decision is made

knowingly and intelligently. Miller, 254 Or App at 523-24.

In essence, defendant argues that he uttered magic words

Cite as 329 Or App 588 (2023) 613

that triggered the court’s obligation to provide him with a

catechism on the dangers of self-representation. Defendant’s

argument misapprehends Miller and the Meyrick foundation

on which it is laid.

In Miller, on the day before trial, the defendant

explained that he wanted to hire a new lawyer who would

not be available for trial the next day. 254 Or App at 521.

The trial court told him he had three choices: proceed with

current counsel, have his new lawyer ready to go to trial

the next day, or represent himself. Id. The following day,

counsel moved to withdraw, and the court noted that coun-

sel had a great deal of experience and that an issue that

the defendant attempted to raise pro se “shows me how lit-

tle you know about these matters and that you’re better in

the hands of an experienced attorney.” Id. at 521-22. The

court therefore denied the motion to withdraw, the motion

for a continuance, and the motion for self-representation

“in your own best interest.” Id. at 522. On appeal, we con-

cluded that the defendant had clearly sought to invoke his

right of self-representation and that the trial court erred,

because “rather than establishing that defendant’s waiver

was knowing and intelligent, [the court] summarily denied

defendant’s request solely because it was in his ‘best interest’

to continue to be represented by his current defense coun-

sel.” Id. at 524 (emphasis omitted). The present case is not

comparable factually in any significant way. As described

above, defendant’s request was not unequivocal like that in

Miller, nor did the trial court treat defendant’s request like

the one in Miller.

Defendant also suggests that this case is compa-

rable to Music, 305 Or App at 16, in which the defendant

made multiple unequivocal requests to represent himself

rather than have the court appoint a new attorney and also

expressed frustration at the length of his pretrial detention

and other pretrial matters, which the trial court interpreted

“as a refusal to answer the court’s questions about represen-

tation.” We concluded that the request for self-representation

was unambiguous and rejected the state’s suggestion that

the defendant was refusing to answer the court’s questions,

observing that, although the defendant was expressing

614 State v. Johnson

frustration with the trial court, the “frustration at the court

refusing to acknowledge his request for self-representation

cannot be a justification for the court’s failure to acknowl-

edge the request in the first instance.” Id. at 19. We conclude

that this case is readily distinguishable.

Although it is true that, like the defendant in

Music, defendant in this case did refuse to directly answer

the court’s questions on numerous occasions, the similari-

ties end there. The problem in Music was that the trial court

“interpreted [the] defendant’s discussion about waiving his

preliminary hearing as a refusal to answer the court’s ques-

tions about representation.” Id. at 16. Here, by contrast, the

court and defendant were not—for the most part—speaking

at cross-purposes when they engaged in a discussion about

the dangers of self-representation or whether defendant

wished to proceed with counsel. Defendant informed the

court that he felt that the court’s form was not comprehen-

sive enough in explaining the dangers of self-representation

in his view of the case law on the subject. Defendant quoted

case law to the court about self-representation and condi-

tioned his answer to the court’s questions about whether he

wanted to represent himself on the court first doing what

defendant requested, viz., submit to a lengthy examination

by defendant. Accordingly, Music does not assist defendant’s

arguments in this case.

The cases on which defendant relies do little to

advance his arguments on appeal. In particular, rather than

making anything like an explicit or unambiguous request

to represent himself, defendant equivocated about whether,

or how, or under what circumstances, he might or might

not want to represent himself, including suggesting that he

would make a decision only after being allowed to engage in

an extensive examination of the trial judge. A review of the

transcript leaves no doubt that defendant was aware that

case law indicated that the preferred method of determining

if an individual understands the risks of self-representation

is for the court to engage in a colloquy with a defendant.

Defendant’s responses to the court’s inquiries on whether

he wished to represent himself or whether he was satisfied

Cite as 329 Or App 588 (2023) 615

to proceed with counsel were evasive at worst and far from

clear at best.

It is true that the sort of colloquy described in

Meyrick as the preferred means to ensuring that a defen-

dant understands the pitfalls of self-representation did not

occur here. Although a colloquy is identified as the “pre-

ferred” means of ensuring that a defendant understands

the dangers of self-representation, it is not the only means.

There are circumstances in which a court, dealing with a

vacillating defendant, may conclude that it cannot success-

fully engage in such a colloquy. And we have little doubt

that that was the case here: The court wanted defendant to

provide a direct response to the inquiry about whether he

wanted to represent himself or whether he wished to con-

tinue to be represented, and defendant’s response was to

propose a four-hour hearing to allow himself the opportu-

nity to question the trial judge. The sort of colloquy contem-

plated in Meyrick and its progeny does not involve an open-

ended questioning session in which defendants query judges

about how to try their cases, and there would be significant

dangers in engaging in such a process that could jeopar-

dize an adequate defense. In short, the court did not err in

declining to follow defendant’s preferred course of action in

addressing the issue.

We agree with defendant’s contention that, to

the extent that the court’s comments could be understood

to mandate a written request to waive counsel, the court

would have been acting outside of its permissible range of

discretion if it denied the request on that basis alone. That

is, the parties have not cited any legal requirement—and

we are not aware of any—that a request to waive counsel

must be made in writing.12 Nonetheless, even assuming that

the court should not have told defendant that he needed

to submit his request in writing, we conclude that that

does not resolve the question presented. Our review of the

12

The record does not contain the form that the court gave to defendant.

However, it is clear from the record that the form explained some of the dangers

of self-representation despite defendant’s statements to the court that he did not

believe that the form adequately described all the dangers of self-representation

set forth in the case law as he understood it. We express no opinion on the content

of that form.

616 State v. Johnson

circumstances before the trial court reveals that defendant

knew of the dangers of self-representation, and the record

further reflects that the court knew that defendant under-

stood the dangers of self-representation and that defendant

knowingly and voluntarily chose to proceed with counsel

rather than proceed pro se.

A colloquy, as noted earlier, is not the only means

to ensure that a defendant is aware of the dangers of self-

representation. In some instances, the record can reflect

that a defendant appreciates “the material risks of self-

representation.” State v. Jackson, 172 Or App 414, 423, 19

P3d 925 (2001) (observing that the Meyrick court’s “no cat-

echism” approach “explicitly disclaims such a formalistic

approach”). In this case, when defendant told the court that

he needed to be advised of the risks and dangers of self-

representation, he revealed throughout those exchanges that

he already had significant legal knowledge on the subject.

For instance, he demonstrated that knowledge by asserting

that the court was required to ensure that he knew of the

risks and dangers of self-representation and opining that

the court’s waiver form did not adequately provide all of the

information that, in his view, case law indicated should be

provided to a defendant in this circumstance. “A record can

reflect that the defendant sufficiently understands the mate-

rial risks of self-representation in a number of ways.” State

v. Lasarte, 203 Or App 222, 224, 125 P3d 33 (2005); see also

Meyrick, 313 Or at 132 n 8 (observing that “a defendant’s

knowledge and understanding of the right to counsel and of

the dangers and disadvantages of self-representation may

turn on things other than on what the court tells the defen-

dant, such as the defendant’s age, education, and experience

and the complexity of the charges and possible defenses”).

As we have observed, a defendant’s “appreciation of the risks

[of self-representation] must be grounded in the defendant’s

case; they cannot be general or abstract.” State v. Abbott,

319 Or App 578, 582, 510 P3d 935 (2022). Here, defendant

had knowledge of the charges and possible defenses—topics

that had been extensively explored in Johnson I, Johnson II,

and Johnson III.13 His statements to the trial court demon-

13

We also note that defendant had an extensive history of litigation including

both representation by counsel and self-representation, as shown in the following

Cite as 329 Or App 588 (2023) 617

strated that he had reviewed appellate case law concerning

the dangers of self-representation. And, as the state notes,

all of this happened long before the commencement of the

trial.

The circumstances described in Brooks, 301 Or App

at 428-29, involved a somewhat comparable situation where

the defendant was equivocal about whether he wanted to

represent himself, the trial was not imminent, and the trial

court followed a similar approach to this case by deferring

consideration of the issue to give the defendant an opportu-

nity to discuss the matter with counsel. As described above,

the court in this case initially gave defendant a week to dis-

cuss matters with counsel. Then, at a second hearing, the

court again offered defendant more time to discuss it with

counsel, but when the matter was eventually raised again in

the context of a discussion of counsel’s motion to withdraw,

defendant declined to say anything more on the subject. In

short, under the circumstances of this case, the court did not

err in failing to engage more with defendant on the topic of

the dangers of self-representation. The record demonstrates

that defendant knowingly and voluntarily proceeded with

representation by counsel rather than self-representation.

C. Law of the Case

1. Introduction

As described above, although the trial court consid-

ered and ruled on numerous issues before retrial, it declined

to rule on some of defendant’s suppression arguments, as

well as his pretrial motion in limine to exclude under OEC

404(3) the prior bad acts testimony of the girls whom defen-

dant had drugged in the past. The state argued, and the

court agreed, that consideration of those issues on retrial

was barred under the law of the case doctrine.

non-comprehensive list of defendant’s endeavors: Johnson v. Premo, 355 Or 866,

868, 878, 333 P3d 288 (2014) (noting that defendant had “filed more than 100 pro

se motions, totaling more than 6,000 single-spaced pages of argument,” and hold-

ing that the court did not err in striking pro se motions when he was represented

by counsel); Johnson v. Premo, 302 Or App 578, 461 P3d 985, rev den, 366 Or 569

(2020) (concerning pro se motions filed in the post-conviction case); Johnson v.

Doe, 301 Or App 756, 459 P3d 271, rev dismissed, 366 Or 569 (2020) (concerning

a pro se petition for writ of habeas corpus); Johnson v. Premo, 287 Or App 307,

403 P3d 547 (2017) (concerning pro se motions filed in the post-conviction case).

618 State v. Johnson

Before turning to the specific arguments raised on

appeal, we begin with a description of the law of the case

doctrine and its purpose, then address the question of its

applicability in situations such as this, where a retrial is

occurring long after the first trial due to an intervening

judicial proceeding that resulted in a finding that a defen-

dant received inadequate assistance of counsel at the first

trial.

The law of the case doctrine was described suc-

cinctly in State v. Pratt, 316 Or 561, 569, 853 P2d 827, cert

den, 510 US 969 (1993):

“It is a general principle of law and one well recognized

in this state that when a ruling or decision has been once

made in a particular case by an appellate court, while it

may be overruled in other cases, it is binding and conclu-

sive both upon the inferior court in any further steps or

proceedings in the same litigation and upon the appellate

court itself in any subsequent appeal or other proceeding

for review.”

(Quoting Simmons v. Wash. F. N. Ins. Co., 140 Or 164, 166,

13 P2d 366 (1932)). In Pratt, the issue arose because, in its

initial opinion on appeal that had resulted in a reversal and

remand, the court had considered, and rejected, an argu-

ment that the defendant’s arrest had been unlawful. 316 Or

at 568 (citing State v. Pratt, 309 Or 205, 216-17, 785 P2d

350 (1990)). After remand, the defendant had raised that

issue again, following up on and developing an issue that

the appellate court had mentioned that had not been raised

in the initial motion to suppress. Pratt, 316 Or at 568-69.

The court, however, concluded that the law of the case doc-

trine precluded reconsideration of that legal argument,

given that the court had expressly considered the potential

merits of the issue in the initial appeal and had rejected its

applicability to the facts of the case. Id. Simmons, on which

Pratt relied, appears to have concerned a somewhat similar

situation—although not much detail was provided as to the

issues involved, the court noted that “the facts in evidence

upon both trials were substantially the same.” Simmons, 140

Or at 166. Both Pratt and Simmons relied on other Oregon

cases concerning the law of the case doctrine, which has a

long jurisprudential history. See, e.g., State v. Keelen, 106

Cite as 329 Or App 588 (2023) 619

Or 331, 336, 211 P 924 (1923) (rejecting sufficiency of evi-

dence challenge based on law of the case doctrine because in

the prior appeal “and upon testimony practically the same

as that adduced here we held that there was sufficient evi-

dence to take the case to the jury”); Stager v. Troy Laundry

Co., 41 Or 141, 142, 68 P 405 (1902) (explaining that, where

evidence adduced in prior trial was the same “in all mate-

rial respects” and “the identical question presented on this

appeal that was contested and disposed of on the former,” law

of the case doctrine precluded reconsideration of question).

The law of the case doctrine is not absolute, partic-

ularly concerning issues involving a different factual record.

See Bloomfield v. Buchanan, 14 Or 181, 184, 12 P 238 (1886)

(“The law of the case does not apply to the facts, but only to

the law. Therefore, when new and different facts are pre-

sented, requiring the application of a different rule of law

from that applied on the former appeal, the court must apply

the law to the new facts as they appear.” (Emphasis omit-

ted.)). As we have recognized, there are at least some situa-

tions where a change in the law shows the outer edges of the

law of the case doctrine.

In State v. Poston, 309 Or App 377, 482 P3d 778

(2021), we concluded that the law of the case doctrine did

not preclude us from reconsidering an issue that we decided

in the earlier proceeding. That is, although we had previ-

ously rejected the defendant’s challenge to nonunanimous

jury verdicts in an earlier appeal by applying the then-con-

trolling authority of Apodaca v. Oregon, 406 US 404, 92 S Ct

1628, 32 L Ed 2d 184 (1972), we concluded in a subsequent

appeal that the law of the case doctrine did not preclude

us from reconsidering that issue in light of the intervening

decision of Ramos v. Louisiana, 590 US ___, 140 S Ct 1390,

206 L Ed 2d 583 (2020), which overruled Apodaca and estab-

lished that the verdict the defendant sought to challenge was

unconstitutional under the Sixth Amendment. Poston, 309

Or App at 379-84. In Poston, we recognized that the law of

the case doctrine is a prudential one and that there existed

a well-established exception to its application in situations

involving “intervening, inconsistent, controlling authority,”

such as an intervening decision of the Supreme Court of the

620 State v. Johnson

United States. See id. at 381 (quoting Allan D. Vestal, Law

of the Case: Single-Suit Preclusion, 1967 Utah L Rev 1, 6

(1967)). Similarly, in State v. Metz, 162 Or App 448, 454, 986

P2d 714 (1999), rev den, 330 Or 331 (2000), we noted that

the doctrine is “essentially one of judicial economy and judi-

cial discretion,” and concluded that the doctrine did not bar

the admissibility of certain evidence that had been deemed

inadmissible in the initial appeal but was later made admis-

sible by an intervening statutory change. With that back-

ground on the law of the case doctrine, we turn to the spec-

ified prior bad acts evidence at issue in this appeal.

2. Prior bad acts evidence

The parties here debate whether, or how, the law

of the case doctrine applies in light of the court’s determi-

nation in Johnson I that at the initial trial, the trial court

had properly admitted evidence that “defendant habitually

preyed on underage girls, taking them to nightclubs, pro-

viding them with alcohol and drugs,” and “sexually abus-

ing them while they were rendered unconscious by drugs

that he had provided to them.” 340 Or at 322. The court

described that evidence as “powerful circumstantial evi-

dence that defendant’s sexual contact with [HF] occurred

after he had drugged her, and that he took advantage of her

incapacitated state.” Id. at 339.

The question the court addressed was whether the

evidence was admissible under OEC 404(3), which provides:

“Evidence of other crimes, wrongs or acts is not admissible

to prove the character of a person in order to show that

the person acted in conformity therewith. It may, however,

be admissible for other purposes, such as proof of motive,

opportunity, intent, preparation, plan, knowledge, identity,

or absence of mistake or accident.”

The court observed that the evidence did not qualify as

modus operandi evidence, because it lacked a sufficiently

distinctive methodology but concluded that it must (and

did) “involve a method of incapacitation (administration of

an intoxicating substance) that would support the narrow

inference that the state seeks to draw from it—that sexual

contact between [HF] and defendant occurred while [HF]

Cite as 329 Or App 588 (2023) 621

was incapacitated by morphine that defendant had admin-

istered.” 340 Or at 340. The court concluded that “the wit-

nesses’ testimony was admissible for the noncharacter pur-

pose of showing that [HF] did not consent and, in fact, was

incapable of consenting to the sexual contact that she had

with defendant.” Id. To reiterate, the court in Johnson I con-

cluded that defendant had a “method” of using morphine to

sexually exploit girls, and that such evidence “permitted the

jury to infer that [HF], like others, had not consented to the

sexual contact with defendant that other evidence all but

conclusively established had occurred.” Id. at 341.

As defendant’s argument correctly points out, that

“consent” justification for the admission of this evidence was

later disavowed. In State v. Leistiko, 352 Or 172, 282 P3d

857, adh’d to as modified on recons, 352 Or 622, 292 P3d 522

(2012), abrogated in part by State v. Jackson, 368 Or 705,

498 P3d 788 (2021), the court distanced itself from the state-

ments in Johnson I that prior bad acts evidence is admissi-

ble to show whether a victim consented to sexual contact. In

Leistiko, the court noted the “consent” language in Johnson

I but explained that, viewed in context, the case should be

read to stand for the narrower proposition that “the jury

could infer from that evidence that the defendant had a plan

or method for obtaining sexual access to women while they

were incapacitated and acted pursuant to that plan.” 352

Or at 181. That is, the relevance theory that justified the

admission of that evidence was not that it showed whether

HF consented to sexual contact (which would be squarely at

odds with the holding in Leistiko) but that defendant had a

“method” of drugging women. The Leistiko court went on to

explain that its “method” ruling in Johnson I was consistent

with a “plan” theory of admissibility “that a pattern of prior

similar acts may be admissible to prove a plan or design.”

Id. at 188 (citing Wigmore, 2 Evidence § 304 at 249).

Thereafter, in State v. Turnidge (S059155), 359 Or

364, 439, 374 P3d 853 (2016), cert den, ___ US ___, 137 S Ct

665 (2017), the court elaborated on the type of “plan” evi-

dence described in Leistiko (and Johnson), describing that

type of theory, as set forth in the Wigmore treatise, as “spu-

rious plan” evidence, viz., “prior bad act evidence offered to

622 State v. Johnson

show that a defendant engaged in a pattern or systematic

course of conduct from which the existence of a plan is to

be inferred.” (Emphasis omitted.) The court in Turnidge

(S059155), however, ultimately concluded that the evidence

at issue was not “spurious plan” evidence. Id. at 440.

In his opening brief on appeal, defendant argues that

Leistiko shows that the court’s stated rationale for admission

of the evidence in Johnson I was incorrect and that Turnidge

(S059155) also casts doubt on whether the evidence at issue in

Johnson I was admissible “plan” evidence under OEC 404(3).

We have little reason to doubt defendant’s assertion that, if

it were a matter of first impression, Johnson I would not be

analyzed today the way it was in 2006.14 The difficulty with

defendant’s argument, however, is that the court did not,

in fact, disavow or overrule Johnson I in Leistiko, Turnidge

(S059155), or in any of its later cases explaining the limita-

tions of propensity-based reasoning. The court did suggest in

Leistiko and Turnidge (S059155) that the evidence described in

Johnson I fit within what it eventually labelled the “spurious”

rather than “true” plan theory of admissibility. Importantly,

however, the court has not explicitly disavowed or overruled

“spurious plan” as a possible theory of admissibility under

OEC 404(3).15 Thus, to the extent that defendant argues on

14

We note, in particular, cases such as State v. Skillicorn, 367 Or 464, 479 P3d

254 (2021), and State v. Jackson, 368 Or 705, 498 P3d 788 (2021), provide insight

into the court’s current view of what it considers impermissible propensity-based

reasoning for admission of prior bad acts evidence. See, e.g., Skillicorn, 367 Or

at 476 (explaining that prior bad acts evidence may not be used “to argue that

the defendant has either a general propensity to engage in misconduct or a spe-

cific propensity to engage in misconduct like the charged crime and, therefore,

it is more likely that the defendant committed the charged crime”); id. at 473

(noting that prior bad acts evidence cannot “be admitted under the doctrine of

chances for the purpose of arguing that, because the defendant engaged in delib-

erate conduct before, it is likely that he engaged in it again during the charged

incident”); Jackson, 368 Or at 730-32 (rejecting “doctrine of chances” argument

that evidence of the defendant’s DNA found at four different murder scenes was

admissible to establish the defendant’s identity as the culprit).

15

Indeed, in State v. Taylor, 315 Or App 608, 622-23, 501 P3d 7 (2021), we

upheld the admissibility of evidence on “spurious plan” theory, citing Leistiko and

Johnson I, but our initial decision was vacated and remanded for reconsideration

in light of Jackson. State v. Taylor, 369 Or 675, 508 P3d 501(2022). On remand

from the Oregon Supreme Court, we applied Jackson and affirmed, concluding

that the inferences the state advanced—unlinked or spurious plan—”did not

require character reasoning to connect the other act to the charged act.” State v.

Taylor, 326 Or App 396, 408-09, 532 P3d 502, rev allowed, 371 Or 509 (2023).

Cite as 329 Or App 588 (2023) 623

appeal that the law of the case doctrine should not apply

because of changes in the law, we conclude that the trial court

was not faced with an “intervening, inconsistent, controlling

decision by a higher court” that would require it to abandon

the law of the case doctrine with respect to this evidence.

Poston, 309 Or App at 383.16 We conclude that, whatever merit

there is to defendant’s argument about substantive changes in

the law concerning admissibility of prior bad acts evidence, it

is an argument to be made before the Oregon Supreme Court.

Accordingly, we reject defendant’s law of the case

argument as it was presented by counsel in the opening

brief. We note, however, that in his supplemental pro se

brief, defendant makes an additional argument that also

was made in the trial court. That argument—read gener-

ously—is that the law of the case doctrine should be inappli-

cable in a context such as this, where there has been a post-

conviction proceeding that resulted in a finding that trial

counsel had provided inadequate assistance to the defen-

dant in the original trial. That is, defendant suggests that

the law of the case doctrine should give way in light of the

inadequate manner in which the original case was tried. In

the abstract, that proposition appears to have some merit,

although we are aware of no case law that has addressed

this specific situation and defendant cites none.

As described above, the law of the case doctrine

applies when the evidence is materially the same in a

subsequent trial, and the same legal questions are presented.

When there is a retrial after a successful post-conviction

claim, it is certainly possible that neither the evidence nor

16

We also note that, even if we were to conclude that Leistiko, Turnidge

(S059155), or other subsequent Oregon Supreme Court cases did implicitly or

explicitly overrule Johnson I, it would not necessarily follow that the law of the

case doctrine is inapplicable here. As noted above, the court in Pratt specifically

cautioned that

“when a ruling or decision has been once made in a particular case by an

appellate court, while it may be overruled in other cases, it is binding and

conclusive both upon the inferior court in any further steps or proceedings

in the same litigation and upon the appellate court itself in any subsequent

appeal or other proceeding for review.”

316 Or at 569 (quoting Simmons, 140 Or at 166). Thus, whatever is to be made

of the shifting or refinement of the OEC 404(3) analysis, Pratt informs us that

the statements in Johnson I are “binding and conclusive” in this subsequent

proceeding.

624 State v. Johnson

the legal questions in a subsequent appeal will be the same.

And as defendant notes, we made a pertinent observation

that relates to that subject in Johnson II. As described

above, Johnson II and Johnson III concerned the inadequate

assistance defendant received in the first trial due to coun-

sel’s failure to develop a drug-overdose theory of the case,

and the state had appealed the post-conviction court’s con-

clusion. On appeal, in upholding the post-conviction court’s

decision, we declined to consider defendant’s (then peti-

tioner’s) assignments of error on cross-appeal in which he

asserted that trial counsel had been inadequate in numer-

ous other ways in his original trial. We explained:

“Petitioner does not argue that any of his assignments

of error on cross-appeal could provide relief different from

the relief of a new criminal trial that the post-conviction

court granted, and that we affirm. Moreover, we do not

understand the court’s denial of post-conviction relief on

other claims to have any effect on the retrial of the case,

or to preclude petitioner from relitigating any of the issues

underlying those additional claims, which might arise in a

different posture on retrial.”

Johnson II, 277 Or App at 227 n 2. That footnote demon-

strates our belief that issues from the first trial that defen-

dant asserted had been handled inadequately by counsel

might arise in a different posture on retrial, and that the

court on retrial would not be precluded from considering

them. Although that footnote was not specifically about the

law of the case doctrine, the gravamen of our observation

is consistent with that doctrine: If, on retrial, a factual or

legal issue arises in a significantly different posture—and,

in fact, was a subject of one of the inadequate assistance

of counsel claims not reached by us in the post-conviction

appeal—litigation of the issue on retrial would not be pre-

cluded. Importantly, however, the post-conviction claims

that we did not reach in Johnson II did not concern counsel’s

handling of the OEC 404(3) issue at the first trial. Thus,

regardless of whether that footnote suggests a possible lim-

itation on the law of the case doctrine in this circumstance,

the limitation it suggests is not implicated here.17

17

We note that neither defense counsel’s brief nor defendant’s pro se brief

actually argues that the differing evidence on retrial—evidence concerning

Cite as 329 Or App 588 (2023) 625

3. Suppression of evidence

We address only briefly defendant’s law of the

case argument concerning one of his suppression motions.

Again, we assume for the sake of argument that the excep-

tion to the law of the case doctrine concerning changes in

the law is potentially applicable here. Defendant argues

that the trial court erred in precluding him from relitigat-

ing an issue addressed in Johnson I concerning the search

that revealed evidence that his computer had been used to

access tide tables during the time between when HF went

missing and when her body was found. More specifically,

he argues, as he did in Johnson I, that his computers were

seized and searched unlawfully. He asserts that relitigation

of that issue is not barred by the law of the case doctrine,

because State v. Mansor, 363 Or 185, 421 P3d 323 (2018),

established new standards for warranted searches of com-

puters. The gravamen of his argument is that his computer

was searched based on an overly broad warrant under the

new standards announced in Mansor. Even assuming that

defendant’s argument is correct about the breadth and depth

of Mansor, nothing in Mansor calls into question the actual

analysis of the computer-search issue in Johnson I. That is,

defendant’s argument seems to be premised on the notion

that the court in Johnson I concluded that the trial court

properly denied suppression because the warrant was valid.

That is not the case.

In Johnson I, the court noted that the trial court

had concluded that despite defects in the warrant that ulti-

mately led to the discovery of the disputed evidence, “the

evidence obtained from that search (i.e., the tide table evi-

dence) was admissible, because the state had ‘purged the

taint’ of that unlawful search by showing that the tide table

evidence inevitably would have been discovered.” 340 Or at

327. The Supreme Court agreed with the trial court, con-

cluding that the police “could have, and ultimately would

have” obtained a valid warrant to search the computer

morphine as the potential cause of the victim’s death (an issue that was not

present in the first trial)—or the parties’ newly-developed theories of the case to

address the morphine issue means that the law of the case doctrine is inapplica-

ble because the factual and legal issues are no longer identical. We therefore do

not consider that issue.

626 State v. Johnson

and discovered the tide table evidence. Id. at 328 (footnote

omitted). Thus, none of defendant’s arguments concerning

Mansor address the actual reason that the court in Johnson

I concluded that suppression was properly denied, and

Mansor did not address inevitable discovery. Accordingly,

we conclude that Mansor does not assist defendant’s argu-

ment that the law of the case doctrine is inapplicable under

these circumstances.18

D. Jury Concurrence

On appeal, defendant argues that the trial court

erred in failing to instruct the jury that it needed to con-

cur on the manner in which defendant caused HF’s death,

and subsequently erred in denying his motion for a mistrial

based on the same legal argument. As described above, on

retrial, the state initially pursued the same theory of the

case it had pursued in the first trial, viz., that defendant

had killed the victim by intentionally strangling her, and

the state presented forensic evidence to support that the-

ory. Defendant countered with evidence that the victim had

a lethal amount of morphine in her system when she died

and posited that the morphine caused her death. Thus, the

issue as framed by the defense was whether the state had

proved beyond a reasonable doubt that defendant had stran-

gled the victim to death before she succumbed to the lethal

overdose of morphine. And, as described above, the prose-

cutor remonstrated in the rebuttal closing argument that,

even if the jury found that the victim died of an overdose of

morphine, it could still find beyond a reasonable doubt that

defendant intentionally killed her by giving her that over-

dose of morphine: “Whether you find the Defendant inten-

tionally caused [HF]’s death by drugging her, intention-

ally caused [HF]’s death by strangling her, or intentionally

caused [HF]’s death by a combination of the two, the fact

remains that he did exactly what he intended to do.”

Defendant did not object to the prosecutor’s rebut-

tal argument at the time and he did not raise the matter

of jury concurrence on the manner of death when the jury

was instructed. Further, defendant did not object to the

18

Defendant does not argue that the inevitable discovery analysis would be

affected by Mansor, and we therefore do not consider that issue.

Cite as 329 Or App 588 (2023) 627

court’s receipt of the jury’s guilty verdicts. Several days later,

shortly before the sentencing phase of the trial commenced,

defendant argued that the state had presented a new the-

ory of the case in its rebuttal argument and asked the court

to require the jury to undertake additional deliberations to

determine whether the victim died by strangulation or by

drug overdose. The court declined to do so, and defendant

re-raised the issue in a motion for mistrial, which the trial

court denied. After the conclusion of the penalty phase and

the trial court’s imposition of sentence, defendant filed a

motion for a new trial that raised the same issue from his

post-verdict motion for a mistrial, which the trial court also

denied.

Defendant’s argument that the jury was required to

concur on what caused the victim’s death finds its origins in

State v. Boots, 308 Or 371, 380-81, 780 P2d 725 (1989), which

observes that jurors must concur on specified aspects of an

offense to return a valid verdict. As the court explained in

State v. Pipkin, 354 Or 513, 516-17, 316 P3d 255 (2013), there

are two situations in which the jurors must concur—or the

state must elect the basis on which it is proceeding—where

a statute defines a crime and specifies alternative ways in

which it can be committed or where there is evidence of dis-

tinct occurrences.

Defendant contends that the present case falls

within the latter category, viz., evidence of distinct occur-

rences, asserting that this case resembles State v. Rolfe, 304

Or App 461, 468 P3d 503 (2020), where the state added a

new factual theory of the case during rebuttal argument.

In Rolfe, we concluded that the trial court erred in failing

to require election or to instruct the jury that it needed to

concur on whether the defendant violated a stalking protec-

tive order by sending the message after being served with

notice of the order or, instead, if the message had been sent

before the defendant had notice of the order as the defen-

dant claimed, through the omission of failing to withdraw

the previously sent message after receiving the order. Id. at

468. On appeal in this case, the state responds that a factu-

al-concurrence jury instruction would not have been appro-

priate, because such instructions are limited to situations

628 State v. Johnson

where there is evidence of “multiple, separate occurrences”

of a crime. Because the crime in this case was murder, and it

was impossible for defendant to have killed the victim mul-

tiple times, the state reasons that how defendant killed the

victim was not an essential matter on which the jury needed

to concur, likening the cause of death to the location where a

crime occurred. See State v. Sparks, 336 Or 298, 317, 83 P3d

304, cert den, 543 US 893 (2004) (“Nothing about the crimes

charged in this case demonstrates that the precise location

of the underlying crimes constitutes a material element of

those crimes on which the jury must agree unanimously.”).

Although this could present an interesting issue, particu-

larly in light of the court’s statements in Johnson III, 361 Or

at 700, that it viewed how HF died as “one of the most cru-

cial facts” at issue, we need not reach it given the procedural

posture.

Defendant does not seek plain-error review of this

issue. Rather, he contends that he preserved the matter

by raising it (1) when, several days after the jury returned

guilty verdicts, he asked the court to resubmit the case to

the jury; (2) in his mistrial motion; and (3) in his motion for a

new trial.19 As explained below, we conclude that defendant

did not adequately preserve in a timely manner most of his

arguments for our review and what is preserved is outside

the permissible scope of appellate review.

First, defendant cites no authority for the proposi-

tion that a court is required to send a jury out for additional

deliberations after the court has accepted its verdicts. As we

understand it, defendant suggests that the court was obli-

gated to require the jury to return to its deliberations sev-

eral days after the court had received the verdicts. Implicit

in his argument is that, if the jurors did not in fact reach

concurrence on the manner of death, the verdicts that the

court had received without objection were defective. The

difficulty with his position is that the verdicts received by

the court were not invalid, and defendant cites no author-

ity for his implicit proposition that they were defective in

the absence of a jury-concurrence instruction. We therefore

19

Defendant also appears to be asserting that he raised the issue in a pre-

trial demurrer concerning a motion to elect. On review of the record, however, we

conclude that his motion did not raise that issue.

Cite as 329 Or App 588 (2023) 629

reject defendant’s argument that the court erred in failing

to set aside the verdict and reconvene the guilt-phase jury to

deliberate and attempt to reach concurrence on the manner

of the victim’s death.

Second, as for the motion for a mistrial, the pro-

cedural options for what a court can do after receiving a

verdict are limited. See State ex rel Penn v. Norblad, 323

Or 464, 470, 918 P2d 426 (1996) (discussing post-verdict

procedures); State ex rel Haas v. Schwabe, 276 Or 853, 856,

556 P2d 1367 (1976) (“the only post-verdict motions autho-

rized by statute in criminal cases are motions for a new

trial and motions in arrest of judgment”). Our decision in

State v. Vogh, 179 Or App 585, 41 P3d 421 (2002), is instruc-

tive. In that case, the court failed to administer an oath to

the jury, and the defendant did not bring the matter to the

court’s attention until after the verdict had been received.

Id. at 587. There—as in this case—the court declined to set

aside the verdict and reconvene the jury and also denied

a motion for a mistrial. Although we questioned whether

the court had the authority to reconvene the jury in that

circumstance, we ultimately concluded that, because the

defendant’s request for relief came too late, the court cor-

rectly denied it. Id. at 589-90. As for the defendant’s motion

for a mistrial, the “motion for mistrial at that late stage is

untimely.” Id. at 591 (citing cases). The same timing problem

exists here. Moreover, even assuming that the court did have

the authority to grant a mistrial for this type of asserted

error, this is not a situation in which it would be an abuse

of discretion to deny the motion for a mistrial given the tim-

ing of the motion. We assume that defendant’s argument is

correct that, until the prosecutor clearly made this an issue

in rebuttal argument, defendant had no reason to anticipate

the need for a jury-concurrence instruction. Those circum-

stances do not explain, however, why defendant could not

or did not raise the issue when the prosecutor made that

rebuttal argument, when the jury was being instructed, or

at least some time before the jury returned its verdict.

Third, as for the motion for a new trial, defendant’s

argument runs into ORS 138.105(4)(a), which limits the

scope of appellate review for any denial of a motion for a

630 State v. Johnson

new trial to either juror misconduct or newly discovered evi-

dence. See, e.g., State v. Alvarez-Vega, 240 Or App 616, 619,

251 P3d 199, rev den, 350 Or 297 (2011) (so concluding based

on former ORS 138.040 (2015), repealed by Or Laws 2017, c

529, § 26, which is the predecessor statute to ORS 138.105).

We therefore do not address defendant’s arguments concern-

ing denial of his motion for a new trial. In short, because

they are either insufficiently preserved or outside the per-

missible scope of our appellate review, we reject defendant’s

jury concurrence arguments.

E. Sentencing under ORS 163.107

As noted above, shortly before trial, the legisla-

ture enacted ORS 163.107, setting forth the offense of first-

degree murder. Under that statute, several offenses that

previously had been classified as aggravated murder (and

which included the death penalty as a potential sentence)

became first-degree murder (which does not include the

death penalty as a potential sentence). Defendant was tried

under the first-degree murder statute and, after the jury

returned guilty verdicts, defendant was sentenced pursuant

to the new statute to life without the possibility of parole.

Defendant makes several arguments concerning the sen-

tencing provisions of ORS 163.107, as well as other argu-

ments related to his sentence. We reject without discussion

all of those arguments save one. As explained below, we

address whether ORS 163.107 and other sentencing provi-

sions, as written or as applied in the present case, run afoul

of the Sixth Amendment under Apprendi v. New Jersey, 530

US 466, 120 S Ct 2348, 147 L Ed 2d 435 (2000), and Blakely

v. Washington, 542 US 296, 124 S Ct 2531, 159 L Ed 2d 403

(2004), and affirm.

The legislature enacted ORS 163.107 shortly before

this case went to trial, which had the effect of changing this

from an aggravated murder case—where the death penalty

was a possible sentence—to a first-degree murder case—

where the possible sentences are life with the possibility of

parole and life without the possibility of parole. When origi-

nally tried, defendant was sentenced to death for aggravated

murder pursuant to ORS 163.150, based on a jury’s affir-

mative answers to questions such as whether the murder

Cite as 329 Or App 588 (2023) 631

was committed deliberately with a reasonable expectation

of causing death, whether the killing was unreasonable in

response to provocation by the victim, and whether, in light

of mitigating and aggravating evidence, a defendant should

receive the death penalty. ORS 163.150(1). By contrast, ORS

163.107(2) provides:

“(a) Except as otherwise provided in ORS 163.155

[which relates to a pregnant victim and is not applicable

in this case] and paragraph (b) of this subsection, the court

shall sentence a person convicted of murder in the first

degree, who was at least 15 years of age at the time of com-

mitting the murder, to life imprisonment. The court shall

order that the defendant be confined for a minimum of 30

years without possibility of parole or release to post-prison

supervision except as provided in ORS 144.397, and with-

out the possibility of release on work release or any form of

temporary leave or employment at a forest or work camp.

“(b) The court may sentence the person to life impris-

onment without the possibility of parole if the person was at

least 18 years of age at the time of committing the murder.

The court shall state on the record the reasons for imposing

the sentence.”

Thus, the default sentence for first-degree murder under

subsection (2)(a) is life imprisonment for a minimum of 30

years. Under subsection (2)(b), however, the “court may sen-

tence” a defendant to “life imprisonment without the possi-

bility of parole,” but only if the defendant is at least 18, and

if the court “state[s] on the record the reasons for imposing

the sentence.” There is no explicit provision for empaneling

a jury to make factual findings in support of the imposition

of a life without parole sentence.

In a pretrial motion, defendant asserted that the pro-

vision in ORS 163.107(2)(b) for imposing a sentence greater

than life with the possibility of parole was constitutionally

infirm because, in his view, it authorizes an enhanced sen-

tence based on facts found by the court, rather than by a

jury. As defendant noted, under Apprendi, “[o]ther than the

fact of a prior conviction, any fact that increases the penalty

for a crime beyond the prescribed statutory maximum must

be submitted to a jury, and proved beyond a reasonable

doubt.” 530 US at 490. The pertinent “statutory maximum”

632 State v. Johnson

for purposes of Apprendi “is the maximum sentence a judge

may impose solely on the basis of the facts reflected in the

jury verdict.” Blakely, 542 US at 303 (emphasis omitted).

Defendant argued that, because subsection (2)(b) did not

provide for fact-finding by a jury, it was unconstitutional.

The state remonstrated that a sentencing jury

could be empaneled pursuant to ORS 136.760 through ORS

136.792 to find enhancement facts and indicated that the

state would seek jury findings of several such facts (includ-

ing those that were ultimately found by the jury), derived

from the state’s felony sentencing guidelines.20 The state

argued that, given the preference for construing statutes to

be constitutional, ORS 163.107 should be viewed as operat-

ing in conjunction with ORS 136.760 through ORS 136.792

to allow for a sentencing jury to find facts upon which a

court could base its reasons for imposing an enhanced

sentence under ORS 163.107(2)(b). The trial court agreed

and, as noted, the jury found sentence enhancement facts

including that: Defendant knew or had reason to know of

the victim’s particular vulnerability; prior sanctions had not

deterred him from re-offending; he was on supervision at

the time of the offense; future efforts to rehabilitate him

would not be successful; and there was a need to ensure the

security of the public. Thereafter, the court indicated that

defendant was at least 18 years of age and gave as its rea-

sons for imposing a sentence of life without parole including

the four enhancement facts found by the sentencing jury.

On appeal, defendant advances two principal

arguments as to why sentencing under ORS 163.107 does

not comport with the rules announced in Apprendi and

Blakely. His primary argument, as noted earlier, is that

ORS 163.107 contains no language that authorizes a trial

court to use ORS 136.760 through ORS 136.792, which were

enacted to ensure compliance with Apprendi/Blakely, when

determining whether the enhanced sentence of life without

parole should be imposed. Thus, he asserts, it was imper-

missible for the court in this case to use that statutory

20

ORS 136.760 through ORS 136.792 were enacted shortly after the Blakely

decision to remedy the previously-authorized judicial factfinding of sentence

enhancement facts. Or Laws 2005, ch 463. They are discussed in more detail

below.

Cite as 329 Or App 588 (2023) 633

framework to have the jury make findings of enhancement

facts. Defendant also makes a secondary argument that the

enhanced sentence may be imposed only “if the person was

at least 18 years of age at the time of committing the mur-

der,” and, as he observes, whether he was 18 years old at the

time of committing the murder was not submitted to the

sentencing-phase jury.

We turn first to defendant’s latter argument relat-

ing to his age at the time of the murder. His argument is

cursory, and he cites no authority to support the argument

that this is an enhancement fact that must be found by a

jury beyond a reasonable doubt. The state contends that the

requirement that a defendant be at least 18 years of age to

be sentenced to life without parole is not an enhancement

fact. In the state’s view, the requirement is an exemption for

those under 18 years of age that merely recognizes the con-

stitutional principle from Montgomery v. Louisiana, 577 US

190, 136 S Ct 718, 193 L Ed 2d 599 (2016), that sentencing a

juvenile to life without parole would be, in almost all circum-

stances, a violation of the Eighth Amendment to the United

States Constitution. The state argues that this situation is

similar to the situation addressed in State v. Agee, 358 Or

325, 364, 364 P3d 971 (2015), adh’d to as modified on recons,

358 Or 749, 370 P3d 476 (2016), where the court rejected an

argument that, because the Eighth Amendment precluded a

death sentence for an intellectually disabled defendant, the

defendant was entitled to a jury finding as to whether he had

an intellectual disability. The court explained: “[B]ecause

intellectual disability is a fact that operates to reduce rather

than to increase the maximum punishment permitted by a

verdict of guilt, the Sixth Amendment does not require the

fact of intellectual disability to be decided by a jury beyond

a reasonable doubt.” Id. Thus, in the state’s view, age or

youth, like intellectual disability, is essentially a mitigating

factor rather than an aggravating factor. Defendant replies

that the structure of the statute does not support that age

or youth be used as a mitigating factor from what other-

wise would be the presumptive sentence for adults. Rather,

in defendant’s view, the default sentence here is life with the

possibility of parole as specified in ORS 163.107(2)(a).

634 State v. Johnson

Although Oregon does not appear to have a case

directly on point, some other state courts have gener-

ally agreed with defendant’s position. See, e.g., State v.

Hernandez, 294 Kan 200, 207, 273 P3d 774, 779 (2012) (con-

cluding that, where defendant’s age of 18 or older was an

element of enhanced offense, it was error under Apprendi

and Blakely not to submit an age question to the jury). But

see Perritte v. State, 912 So 2d 332, 334-35 (Fla 5th Dist Ct

App 2005) (concluding that it was not reversible error under

Apprendi not to submit the question of age to the jury where

the statute for enhanced punishment applied to defendants

18 years of age or older and undisputed evidence in record

established the defendant’s age). Importantly, however,

even the courts that take the position defendant urges us

to adopt recognize that such an error may well be harmless.

See Hernandez, 294 Kan at 208, 273 P3d at 779 (“When the

trial record shows evidence of age that was overwhelming

and essentially uncontroverted, the failure to give the jury

an instruction on the element of age * * * may be harmless.”);

see also Washington v. Recuenco, 548 US 212, 126 S Ct 2546,

165 L Ed 2d 466 (2006) (holding that the failure to submit

a sentencing factor to the jury under Apprendi is not struc-

tural error and is subject to a harmless-error analysis).

Thus, assuming without deciding that defendant is correct

that the question of his age should have been submitted

to the sentencing jury, we conclude that any error in that

regard is harmless beyond a reasonable doubt.

We reach that conclusion for several reasons. First,

there was uncontradicted evidence that defendant provided

numerous teenaged girls with alcohol before the murder

occurred, suggesting that he was old enough to purchase

it, and that those girls referred to him as a “troll,” a term

that they used for adult men who pursued teenaged girls.

Second, and more importantly, references were made during

the trial to the fact that defendant was 42 years old at the

time of the murder, with no suggestion that that description

was inaccurate. Third, numerous exhibits were presented by

the defense in this case, including copies of official records,

which contained his date of birth in 1956. Finally, defendant

was originally tried and convicted of aggravated murder, he

received the death penalty, and that penalty was upheld on

Cite as 329 Or App 588 (2023) 635

appeal. At that point in time, the death penalty not only

was prohibited under the Eighth Amendment for juveniles

but also was prohibited by Oregon law for juveniles. See gen-

erally Roper v. Simmons, 543 US 551, 125 S Ct 1183, 161

L Ed 2d 1 (2005) (so holding); Engweiler v. Board of Parole,

343 Or 536, 175 P3d 408 (2007) (detailing the history of

juvenile aggravated murder sentencing under Oregon law).

Given that information, we conclude that, even assuming

defendant’s argument is correct that the trial court erred in

failing to submit the question of defendant’s age to the sen-

tencing jury, that error was harmless beyond a reasonable

doubt given all the evidence before the jury that would have

led it to conclude that he met the age threshold for the trial

court to impose the sentence that it did in this case.

We now turn to defendant’s primary argument

that ORS 163.107(2)(b) runs afoul of Apprendi—more spe-

cifically, the provisions of ORS 163.107(2)(b) that “[t]he court

may sentence the person to life imprisonment without the

possibility of parole” and “shall state on the record the rea-

sons for imposing the sentence.” In our view, those provi-

sions give a trial court discretion to impose an enhanced

sentence—rather than a sentence of life with the possibil-

ity of parole—and require the court to give “the reasons for

imposing the sentence.” Those provisions do not, however,

contain any explicit limitation on judicial factfinding to

bring the statute within the confines of the rules announced

in Apprendi and Blakely that, with certain exceptions, rea-

sons for imposing an enhanced sentence must be submitted

to a jury and found beyond a reasonable doubt. Because the

statutory framework does not specifically call for factfinding

by a jury, defendant posits that it must provide for judicial

factfinding, which cannot be reconciled with the require-

ments of Apprendi and Blakely. We do not understand defen-

dant to be arguing that the reasons the trial court gave for

imposing the enhanced sentence in this case were not found

by the jury. As noted above, the court empaneled a sentenc-

ing jury that found beyond a reasonable doubt the enhance-

ment facts on which the court later relied. Rather, we under-

stand defendant’s argument to be focused on the statutory

framework that does not provide explicitly for empaneling a

jury to make those findings in cases involving first-degree

636 State v. Johnson

murder, and therefore the sentence could not be constitu-

tionally applied to him. We reject defendant’s argument.

As we have often observed, “[i]t is axiomatic that

we should construe and interpret statutes in such a man-

ner as to avoid any serious constitutional problems.” State v.

Alvarado, 257 Or App 612, 621, 307 P3d 540 (2013) (citations

and internal quotation marks omitted); see also Edward

J. DeBartolo Corp. v. Florida Gulf Coast Bldg. & Constr.

Trades Council, 485 US 568, 575, 108 S Ct 1392, 99 L Ed 2d

645 (1988) (explaining that, “where an otherwise acceptable

construction of a statute would raise serious constitutional

problems, the Court will construe the statute to avoid such

problems unless such construction is plainly contrary to

the intent of Congress”). Defendant does not argue that the

legislature, in enacting ORS 163.107 to decrease the penal-

ties for certain murder offenses, intended a constitutionally

infirm statute that required judicial factfinding at sentenc-

ing contrary to the requirements set forth in Apprendi and

Blakely. Rather, we understand defendant’s argument to

be more along the lines that ORS 163.107 simply is irrec-

oncilable with the other statutory provisions that conform

Oregon’s sentencing practices with the requirements of

Apprendi and Blakely, because, as defendant observes, ORS

163.107(2)(b) does not cross-reference those other statutory

provisions and requires the court, not the jury, to state the

reasons for imposing the enhanced sentence.

To the extent that defendant is implying that Blakely

and Apprendi require the jury to make the decision whether

to impose an enhanced sentence, we reject that argument.

The jury must find the facts on which an enhanced sen-

tence is based, and the actual sentencing decision remains

with the court to impose. Said differently, if a sentencing

framework allows the court to decide whether to impose an

enhanced sentence after a jury makes the requisite findings

that an enhancement fact or facts exist, that does not run

afoul of Blakely and Apprendi, because the court is not find-

ing facts in that circumstance—the jury is. Oregon’s sen-

tencing framework provides for just that.

As noted above, the legislature enacted ORS 136.760

through ORS 136.792 specifically in response to Blakely.

Cite as 329 Or App 588 (2023) 637

Nowhere in those statutes is there any textual indication

that they would not apply to sentencing on newly created

offenses such as first-degree murder under ORS 163.107.

Indeed, those statutes are written very broadly. For exam-

ple, ORS 136.760(2) defines an “enhancement fact” simply

as one “that is constitutionally required to be found by a

jury in order to increase the sentence that may be imposed

upon conviction of a crime.” The provisions for submitting

those issues to a jury—ORS 136.770, ORS 136.773, and

ORS 136.792—similarly are crafted in such a way that a

trial court may empanel a jury to find enhancement facts in

any situation in which jury findings of enhancement facts

are required to impose an enhanced sentence. Importantly,

ORS 136.785(5) provides that “[n]otwithstanding the find-

ings made by a jury relating to an enhancement fact, the

court is not required to impose an enhanced sentence.” See

also ORS 137.080 (providing that a court may consider evi-

dence of aggravation or mitigation in imposing sentence in

accordance with felony sentencing guidelines); OAR 213-

008-0001 (providing that a court shall state on the record

the reasons for imposing a departure sentence); ORS

161.735 (providing that, after jury finds dangerous offender

enhancement facts, court may choose to sentence defendant

as dangerous offender).

When ORS 163.107(2)(b) is viewed in the context

of those related statutes that apply generally to sentencing

practices, it becomes evident that the statutes work together

harmoniously in a manner that results in a constitutional

sentence: A jury is empaneled—should the defendant choose

to have sentence enhancement facts found by a jury—under

ORS 136.770 or 136.773. If the jury finds enhancement facts

proven beyond a reasonable doubt, ORS 136.785(2), the court

may then, under ORS 163.107(2)(b) and ORS 136.785(5),

choose to impose an enhanced sentence and, in so doing, it

must state on the record the jury-found enhancement facts

it is relying on to impose the enhanced sentence.

In sum, the procedure followed here by the trial

court for submitting enhancement facts to the jury during

sentencing and the court’s imposition of an enhanced sen-

tence based on those facts comport with both the statutes

638 State v. Johnson

described above and with the requirements of Apprendi and

Blakely.

IV. CONCLUSION

For the foregoing reasons, we conclude that neither

defendant’s convictions nor his sentence are infirm in the

ways that he posits on appeal.

Affirmed.