State v. Johnson

542 P.3d 467

329 Or.App. 588

STATE of Oregon, Plaintiff-Respondent,

v.Martin Allen JOHNSON, Defendant-Appellant.

A173046

Court of Appeals of Oregon.

Argued and Submitted February 28, 2022.

December 20, 2023

Washington County Circuit Court, C011654CR; Eric Butterfield, Judge.

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, Salem, 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.

₅₉₀Defendant 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 defendant 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 murdered. 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 subsequently 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 P.3d 173, cert. den., 549 U.S. 1079, 127 S.Ct. 724, 166 L.Ed.2d 564 (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 computer, 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, 131 P.3d 173. 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 ₅₉₁matched defendant’s DNA." Id. at 322, 131 P.3d 173. The pathologist who performed the autopsy opined that HF had died from strangulation. Id. at 321, 131 P.3d 173.

As pertinent here, the court in Johnson I considered, and rejected, defendant’s argu- ments that evidence gained from the searches of his house and his computers should be suppressed. Id. at 323-28, 131 P.3d 173. The court also considered, 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 alcohol 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, 131 P.3d 173. 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, 131 P.3d 173. 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 inadequate 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 P.3d 553 (2016) (Johnson IF), and ultimately the Oregon Supreme Court in Johnson v. Premo, 361 Or. 688, 399 P.3d 431 (2017) (Johnson III), all agreed that defendant had received inadequate assistance of counsel. Most notably, although defendant had said that the victim had died of a drug overdose, Johnson II, 277 Or App at 229, 370 P.3d 553, Johnson III, 361 Or. at 706, 399 P.3d 431, trial counsel retained an expert witness, a forensic pathologist, 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 ₅₉₂throwing her off a bridge in Clatsop County, and therefore venue was improper in Washington County.¹ Id. at 690, 399 P.3d 431.

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 counsel should have retained a toxicologist to follow up on defendant’s assertion that the victim had died of a drug overdose. In the post-conviction proceeding, defendant introduced evidence 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, 399 P.3d 431. 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, 399 P.3d 431. 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 strangulation, 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, 399 P.3d 431. The court did, however, note that the drug-overdose theory would at least have supported an argument that the homicide was not committed intentionally. Id. at 707, 399 P.3d 431. The court therefore concluded that defendant had "demonstrated that counsel’s failure to ₅₉₃adequately investigate that defense had a tendency to affect the result of his trial." Id. at 711, 399 P.3d 431. 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 imprisonment with the possibility of parole after a minimum of 30 years’ imprisonment, or the court may sentence a defendant 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 murder: 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 intentionally 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 ₅₉₄with 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 preserve 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 substantive...