August 14, 2003

Cases decided August 14, 2003

The full text of these opinions can be found at http://www.publications.ojd.state.or.us

State of Oregon v. Conan Wayne Hale, (CC 109604830) (SC S45391)

On automatic and direct review of the judgments of conviction and sentences of death imposed by the Lane County Circuit Court, Jack A. Billings, Judge. The judgments of conviction for aggravated murder on counts 20, 21, 27, 29, 35, and 37 are reversed, and the sentences of death thereon are vacated. The judgments of conviction for aggravated murder on counts 19, 25, 26, 28, 33, 34, and 36, and the sentences of death thereon, are affirmed. The case is remanded to the circuit court for further proceedings. Opinion of the Court by Justice W. Michael Gillette. Justice Susan M. Leeson resigned January 31, 2003, and did not participate in the decision of this case.

Today, in its review of a death-penalty proceeding, the Oregon Supreme Court held that an indictment alleging various counts of aggravated murder based on the commission of a predicate crime is sufficient if it charges the alleged offenses in the words of the statute, but instructions to the jury regarding those counts must convey enough information to ensure that the jury agrees unanimously on all material facts constituting the underlying crime.

In December 1995, over the course of about two weeks, Conan Hale and Jonathan Susbauer committed two burglaries, sexually assaulted a young couple, and murdered three teenagers in a wooded area outside Eugene, Oregon. Hale later was charged with aggravated murder and various other offenses in connection with those crimes. The jury found Hale guilty of most of the crimes charged, including 13 counts of aggravated murder, and the trial court sentenced him to death. On review, Hale raised multiple assignments of error regarding pretrial rulings and the guilt and penalty phases of his trial. In a unanimous opinion, the Supreme Court affirmed seven of the aggravated murder convictions and the sentences of death thereon, and it reversed six of the aggravated murder convictions and vacated the sentences of death on those convictions.

The Court first rejected Hale's claim that the trial court should have sustained his demurrer to the indictment because the aggravated murder charges alleging murder committed to conceal the crime of or the identity of the perpetrator of the crime of third-degree sexual assault was impermissibly vague. The Court confirmed that an indictment generally is sufficient if it charges an offense in the words of the statute, which the indictment in Hale's case did.

The Court next rejected Hale's contention that the trial court should have allowed him to introduce evidence that, five years before the events giving rise to this case, Susbauer had been the subject of a "high risk felony stop," in which a police officer had ordered him to lie face down on the ground. Hale had argued that, because the male victims in the sexual assault and the murders had been ordered to lie face down, that evidence was relevant to prove that Susbauer was the perpetrator of both those criminal episodes. The Supreme Court disagreed and held that that evidence was not relevant because it required the jury to make a series of inferential leaps that lacked any factual predicate.

The Court next addressed Hale's argument that the instructions to the jury on 10 of the 13 aggravated murder counts, alleging murder committed to conceal the crime of or the identity of the perpetrator of the crime of third-degree sexual abuse, and alleging murder committed to conceal the crime of or the identity of the perpetrator of the crime of murder, were insufficient to ensure the requisite degree of jury unanimity because there were multiple potential victims and perpetrators for each of those underlying crimes. The Court agreed with Hale that the instructions that the trial court gave the jury with respect to each of those aggravated murder counts were insufficient because they did not either limit the jury's consideration to a specific instance of third-degree sexual abuse or murder, committed by a particular perpetrator against a particular victim, or require jury unanimity concerning a choice among alternative scenarios and, therefore, they carried an impermissible danger of jury confusion as to the crime underlying each count. The Court found the error harmless, however, with respect to the four counts involving the underlying crime of murder, because the jury's unanimous convictions on other aggravated murder counts demonstrated the required degree of unanimity. That was not the case with respect to those counts alleging third-degree sexual abuse as the predicate offense and, therefore, the Court reversed those six convictions and vacated the sentences of death thereon.

As a final matter, the Court accepted the state's concession that the trial court erred when it entered multiple judgments and sentences of death for the aggravated murder of each of the three victims in the case. The Court therefore remanded the case for entry of corrected judgments of convictions reflecting Hale's guilt on the charges of aggravated murder with respect to each victim and imposing a single sentence of death for each victim.


State of Oregon v. Craig Donald Trax, (TC 97CR2980FA; 97CR2980FB) (CA A105215; A105216) (SC S49484)

On review from the Court of Appeals in an appeal from Douglas County Circuit Court, William L. Lasswell, Judge. 179 Or App 193, 39 P3d 887 (2002). The decision of the Court of Appeals is reversed, and the cases are remanded to the Court of Appeals for further proceedings. Opinion of the Court by Chief Justice Wallace P. Carson, Jr.

Today, the Supreme Court held that a warrant that listed the address of a house that turned out to contain two separate residences, and also named the occupants of the residence within the house that was intended to be searched, was sufficiently particularized under Article I, section 9, of the Oregon Constitution. The Court reversed a contrary ruling by the Court of Appeals.

In November 1997, a detective from the Douglas County Sheriff's Office obtained a warrant that listed the address of a house in Winston and named Craig and Lisa Trax (defendants) as persons to be searched. Upon entry pursuant to the warrant, the detective and others accompanying him (the police) discovered that the house in fact was divided into two separate residences
-- one on the first floor and one on the second floor. They then learned from Craig Trax, who was present at the time, that the first-floor residence belonged to defendants. The police searched that residence and found contraband; defendants later were indicted for drug-related crimes.

Before trial, defendants moved to suppress the evidence found during the search, contending that the warrant was not sufficiently particularized under Article I, section 9, because the warrant had not described the house as a multi-unit dwelling. The trial court denied their motions and convicted defendants of
the crimes charged; on appeal, the Court of Appeals reversed the trial court's ruling and defendants' convictions.

In a unanimous opinion authored by Chief Justice Wallace P. Carson, Jr., the Supreme Court affirmed the trial court's denial of defendants' motions to suppress. The Court explained that a description in a warrant satisfies Article I, section 9, if it permits the executing officer to locate, with reasonable effort, the premises intended to be searched. Here, the warrant listed the street address of what turned out to be a multi-unit dwelling and also named defendants as persons to be searched. Upon discovering that the house contained two separate residences, the police permissibly used reasonable effort -- by obtaining information from Craig Trax -- to ascertain which residence within the house belonged to defendants and then searched only that residence. In light of those facts, the Court concluded that the police had been able to execute the warrant without straying into premises that they had no authority to enter and, therefore, that the warrant did not violate Article I, section 9.


State ex rel the Honorable Kristopher Kaino v. Oregon Commission on Judicial Fitness and Disability, (JFC 01-302) (SC S49792)

On petition for a writ of mandamus from a decision of the Commission on Judicial Fitness and Disability. Peremptory writ to issue. Opinion of the Court by Justice R. William Riggs.

The Supreme Court today held that neither Article VII (amended), section 8, of the Oregon Constitution, nor ORS 1.420(1), the statute adopted to enforce it, authorizes the Commission on Judicial Fitness and Disability to hear complaints against municipal court judges.

The commission brought a misconduct complaint against relator, a municipal court judge. Relator contended that the commission lacked jurisdiction over municipal court judges, but the commission refused to dismiss the proceedings. Relator then sought an alternative writ of mandamus from the Court, which issued the writ.

The Court concluded that Article VII (amended), section 8, of the Oregon Constitution, which authorizes disciplinary proceedings against "a judge of any court," would have been understood by the voters who adopted it to refer only to those courts created by and defined in Article VII (amended). At the time that the voters adopted section 8, the Court already had held that municipal court judges are not Article VII (amended) judges. The Court concluded that Article VII (amended), section 8, does not apply to municipal court judges. Thus, the commission lacks jurisdiction to proceed against relator and should have dismissed the proceedings.


In re Complaint as to the Conduct of Lloyd S. Kumley, (OSB 01-32) (SC S49372)

On review from a trial panel of the Disciplinary Board. The accused is reprimanded. Opinion of the Court Per Curiam. Justice Susan M. Leeson resigned January 31, 2003, and did not participate in the decision of this case.

Today, the Supreme Court publicly reprimanded Lloyd S. Kumley for violating two disciplinary rules, DR 1-102(A)(2) (violating disciplinary rules through commission of "a criminal act that reflects adversely on the lawyer's honesty, trustworthiness or fitness to practice law") and DR 1-102(A)(3) (engaging "in conduct involving dishonesty, fraud, deceit or misrepresentation"), and one statute, ORS 9.160 (only active members of Bar may represent themselves as qualified to practice) by representing himself as an "attorney" on various election and government ethics forms at a time when he was an inactive member of the Bar.

Kumley graduated from law school in 1975 and practiced law in California from 1975 to 1984. In 1984, Kumley moved to Oregon, joined the Bar, and opened a law practice. In 1988, Kumley applied to the Bar for inactive status, which the Bar granted. He was reinstated to active status in 1989, but again applied for and was granted inactive status in 1992. Kumley has continued as an inactive member of the Bar since that time.

In early 2000, Kumley took steps toward running for a seat in the Oregon Legislative Assembly. In connection with his candidacy, Kumley filed three forms on which he listed "attorney" as one of his present occupations. At the same time, on the parts of those forms calling for information regarding one's "occupational background," he omitted mention of his former status as a practicing attorney. Kumley also stated, in a form that he filed with the Government Standards and Practices Commission, that he was a "self-employed attorney" for a law practice bearing his name.

The Bar later filed a formal complaint against Kumley, alleging that his statements violated the two disciplinary rules and the statute. At the conclusion of the ensuing proceeding, a trial panel of the Disciplinary Board found that Kumley had violated the statute and both rules, and imposed a 12-month suspension.

On review of the trial panel's decision, the Supreme Court held that Kumley violated DR 1-102(A)(3) by listing his present occupation as "attorney" on the three forms he filed in connection with his candidacy, but not by stating, on a form that he filed with the Government Standards and Practices Commission, that he was a "self-employed attorney" for a law practice bearing his name. The Supreme Court also held that, by creating the false impression that he was a practicing attorney, Kumley committed four criminal acts of "false swearing." According to the Court, those criminal acts reflected to some extent on his honesty and fitness to practice law and, therefore, constituted violations of DR 1-102(A)(2). Finally, the Court also found clear and convincing evidence that the accused violated ORS 9.160 and imposed a public reprimand.
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