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State v. Lotches12/29/2000
Argued and submitted March 6, 2000.
GILLETTE, J.
The judgments of conviction for aggravated murder on counts 1 and 2 are reversed. The judgment of conviction for aggravated murder on count 3 and the sentence of death are affirmed. The case is remanded to the circuit court for further proceedings with respect to counts 1 and 2.
This criminal case is before us on automatic and direct review from convictions for aggravated murder and a sentence of death.FormerORS 163.150(1)(g) (1997),repealed byOr Laws 1999, ch 1055, § 1.. Following a jury trial, the trial court entered a judgment finding defendant guilty of three counts of aggravated murder, one count of attempted aggravated murder, one count of attempted murder, one count of assault in the first degree with a firearm, one count of robbery in the first degree, and one count of felon in possession of a firearm, and imposed a sentence of death. For the reasons that follow, we reverse two of the three convictions for aggravated murder and remand those charges to the trial court for further proceedings. We affirm the other convictions and the sentence of death.
I. SUMMARY OF FACTS
Because the jury found defendant guilty of all the crimes charged, we view the evidence presented at trial in the light most favorable to the state.SeeState v. Thompson, 328 Or 248, 250, 971 P2d 879,cert den527 US 1042 (1999) (stating principle).
At about 2:30 in the afternoon on August 22, 1992, defendant approached Hedges in O'Bryant Square near downtown Portland. While bantering back and forth with Hedges, defendant pretended to be a police officer and frisked Hedges. While Hedges was bending over, defendant slapped Hedges on the back of the motorcycle helmet that Hedges was wearing. The slap was unprovoked. Hedges stood up and asked defendant what he was doing. Defendant then began shouting obscenities at Hedges. Hedges made an effort to calm defendant; defendant joined a friend sitting on a nearby retaining wall. Hedges kept an eye on defendant and, when defendant and his friend walked away, Hedges followed him. After a few blocks, Hedges saw a Portland Guide,Cramer, and told Cramer that he wanted to file a complaint against defendant.
Cramer radioed to the Portland Guides headquarters and to other nearby guides that a man had been assaulted by an individual who was then near Pioneer Square. Cramer described defendant and asked for an officer to respond. Two other unarmed Portland Guides, Edwards and Calderon, spotted defendant walking down the street and began to follow him at a distance of about half a block. They signaled to Riley, another unarmed Portland Guide who happened to be nearby, and Riley, too, began to follow defendant. Defendant appeared to notice that he was being followed and increased his pace.
William Hall, an armed EID officer, approached defendant from the direction in which defendant was walking. Riley also converged on defendant. Hall called out to defendant, stating that he would like to have a word with him. Defendant then threw his hand up toward Riley in an apparent effort to strike him. Riley blocked defendant's swing. Defendant ran north toward Alder Street. Hall, Riley, Edwards, and Calderon began running in pursuit.
There is some dispute about precisely what happened next but, by all accounts, defendant slowed down and Hall began yelling, "He's got a gun. Get down." Shots were fired. Most of the witnesses to the episode could not say who shot first or even where Hall was when the first shot was fired. Riley testified that he saw defendant pull a gun out of a paper bag and that no shots had been fired before that moment. A bystander, Gates
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