State v. Turnidge

359 Or. 507

373 P.3d 138

STATE of Oregon, Respondent

v.Bruce Aldon TURNIDGE, Appellant.

CC 08C53913

SC S059156.

Supreme Court of Oregon.

Argued and Submitted Jan. 15, 2015.

Decided May 5, 2016.

W. Keith Goody, Cougar, Washington, argued the cause for appellant. Andy Simrin, Portland, filed the brief for appellant.

Susan G. Howe, Senior Assistant Attorney General, Salem, argued the cause and filed the brief for respondent. With her on the brief were Anna M. Joyce, Solicitor General, and Timothy A. Sylwester, Assistant Attorney General.

Before BALMER, Chief Justice, and KISTLER, WALTERS, LANDAU, BALDWIN, BREWER, Justices, and LINDER, Senior Justice pro tempore.^*

LINDER, S.J.

Defendant was convicted on 10 counts of aggravated murder, as well as other felonies, following a joint trial with his son, Joshua, whose criminal convictions we affirm on this date. State v. Turnidge , 359 Or. 364, 374 P.3d 853 (2016) (Turnidge (Joshua) ). Defendant and Joshua both were sentenced to death. In this automatic and direct review of his convictions and sentences of death, defendant challenges the sufficiency of the evidence to support four of his 10 aggravated murder convictions; he raises numerous challenges to other trial court rulings as well. By way of relief, defendant seeks outright reversal of four of his aggravated murder convictions or, alternatively, remand for a new trial on those charges or on all counts, and remand for resentencing. For the reasons set out below, we affirm defendant's convictions and sentences of death.

This case arises from a December 2008 bombing of a bank in Woodburn. After a life-threatening phone call was made to an adjacent bank, and an employee was told that the lives of employees in both banks were at risk, law enforcement officers responded to the scene and discovered the bomb, which they assessed and treated as a hoax device. While law enforcement officers were trying to dismantle the bomb, it exploded. Two law enforcement officers were killed; a third law enforcement officer was critically injured, but survived; a bank employee was also injured. The factual details surrounding those events are set out at length in our opinion in Turnidge (Joshua) , 359 Or. at 366–69, 374 P.3d 853, and we incorporate and rely on them here.

The investigation of the bombing led to defendant and Joshua as suspects. Within days of the bombing, they were arrested. See id. at 370–73, 374 P.3d 853 (describing investigation and arrests). Eventually, they were jointly indicted and jointly tried, each on 10 counts of aggravated murder, which included four counts of aggravated felony murder; they were also charged with related felonies. After the jury returned verdicts of guilt on all counts, separate penalty-phase trials were conducted, and the jury voted to impose the death penalty on both defendant and Joshua. The trial court merged all the aggravated murder convictions relating to each murder victim and then entered identical judgments, one against defendant and one against Joshua, each setting out two convictions for aggravated murder (one for each victim who died) and two sentences of death.

On direct review, defendant raises 24 assignments of error, many of which are identical or substantially similar to those that Joshua also has raised and that we have rejected in Turnidge (Joshua) . We reject those arguments in this case for the same reasons that we did so in Turnidge (Joshua) . Defendant raises several additional assignments of error to rulings that the trial court made or as to other issues that arose during the pretrial, guilt, and penalty phases of his trial. For those issues that merit discussion, we address defendant's arguments in that order below. As needed for our analysis, we also set out additional historical and procedural facts not set out in Turnidge (Joshua) .

I. PRETRIAL PHASE

A. Excusal of Jurors for Cause and Destruction of Completed Jury Questionnaires (Assignment Nos. 1–4)

In defendant's first four assignments of error, he raises claims that are essentially the same as those raised and resolved against his position in Turnidge (Joshua) . Specifically, defendant challenges the trial court's decision, during voir dire, to excuse three prospective jurors for cause, based on their responses to questions assessing their ability to follow the law and their oaths, and to impose the death penalty if they found that the facts—under the law—warranted that penalty. Defendant also challenges the court's decision to destroy the completed juror questionnaires after voir dire, over defendant's objection, rather than retain them as part of the record. We reject defendant's arguments for the reasons set out in Turnidge (Joshua), 359 Or. at 406–26, 374 P.3d 853.

B. Evidence of Defendant's Views About Law Enforcement and Other Political Beliefs (Assignment Nos. 9–15 )

We next consider defendant's arguments that the trial court erred in denying his pretrial motions to exclude various statements that he had made, before the crimes in this case, arguing that they were not relevant under OEC 401.¹

1. Additional facts and parties' arguments on review

The statements at issue fall into three groups. The first group involved statements that defendant made approximately 30 years before the bombing; in those statements, defendant talked about possibly detonating a bomb during a police officer memorial with the objective of killing police officers attending the memorial. The next group of statements were made in 1995, when defendant cheered the bombing of the federal courthouse in Oklahoma City and made comments heroizing one of the individuals responsible for the bombing. See Turnidge (Joshua), 359 Or. at 378, 374 P.3d 853 (generally describing defendant's reaction to and statements about Oklahoma City bombing). The final group of statements reflected defendant's antipathy toward the government, his desires to form a militia to resist governmental authority, his acquisition of ammunition and weapons, and his threat to a person to whom he owed money.²

At a pretrial hearing on his motion, defendant argued that statements about bombing the police memorial and his support for the Oklahoma City bombing were remote in time to the charged crimes and did not involve anything similar to a bank robbery. Therefore, defendant argued, that evidence was not relevant to establish intent. As for the evidence of defendant's anti-government sentiments, desires to form an anti-government militia, and acquiring weapons and ammunition, defendant argued that that evidence was not probative of any motive for committing the crimes charged in this case. The state responded that, although some of the evidence was remote in time, it demonstrated defendant's longstanding anti-government sentiments and support for killing government officials and employees, all of which were probative of defendant's motive to orchestrate a bombing in circumstances that would draw law enforcement to the bomb to respond. The state also argued that the evidence of defendant's attempts to form a militia demonstrated his motive to rob a bank—to fund his anti-government militia.

On review, defendant reiterates his argument that the challenged evidence is not relevant because neither his anti-government sentiments nor his militia-related activities were sufficiently connected or similar to the bombing at issue in this case. He argues that, because the bank was privately owned, his anti-government sentiments were not relevant to its bombing and that the state's theory that his motive was to fund militia-related activities was purely speculative.

2. Analysis

Relevant evidence is evidence that has “any tendency to make the existence of any fact that is of consequence to the determination of the action more probable or less probable than it would be without the evidence.” OEC 401. The threshold for admissibility under that relevancy standard is “very low”—as long as the evidence, based on logic and experience, can support a reasonable inference that is material to the case, then the evidence is sufficiently relevant to be admissible, even if that is not the only inference that the evidence would support. State v. Titus, 328 Or. 475, 480–81, 982 P.2d 1133 (1999).

As described, the state argued at trial that evidence of defendant's statements was relevant to motive. Renewing its position on review, the state relies on State v. Hayward, 327 Or. 397, 963 P.2d 667 (1998), for the proposition that evidence that provides a logical inference of motive is relevant in a criminal prosecution, even though motive is not an element that the state must prove. The facts and analysis in Hayward helpfully illustrate that general proposition. We therefore begin with that case.

In Hayward, the defendant and his accomplices, some of whom considered themselves satanists, listened to death metal music before going to a Dari Mart convenience store and robbing it. Id. at 399–400, 963 P.2d 667. During the robbery, they killed one clerk and attempted to kill a second. The defendant sought to exclude the evidence of their obsession with satanism and death metal music as irrelevant. Id. at 406, 963 P.2d 667. This court concluded, however, that the trial court had properly admitted that evidence as probative of motive, explaining:

“One of the theories underlying [the] charges was that death metal music and satanism provided at least one of the motives for defendant [and his accomplices] when they planned and committed the Dari Mart crimes. The testimony to which defendant objected was relevant to the state's theory that defendant and the others intended to commit murder, not merely robbery, when they entered the Dari Mart. The evidence also was relevant to help explain the brutality of the attacks on [two victims] and to explain the group's intention that [the murder victim] also die, not merely to cover up evidence of their other crimes, but also to allow them to carve satanic symbols on the bodies or to

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