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State v. Lotches12/29/2000
ng toward him. Defendant then stopped, assumed a combat stance in which he squared off and held the gun in front of him with two hands. When Elliot realized what was happening, he leaned away from defendant and put his car in reverse. Defendant fired at Elliot as he was backing up. Defendant then aimed and fired a second shot at Elliott that narrowly missed him and struck the driver's seat of the police car.
After shooting at Elliot, defendant began running toward the corner of Ankeny and Grand Avenue. He attempted unsuccessfully to commandeer one vehicle, and then succeeded in getting into a second one, which someone apparently had abandoned in the middle of the street. While defendant tried to start that car, Elliot, now armed with a shotgun, approached defendant and ordered him to drop his gun. Defendant again briefly appeared to consider fleeing. However, by this time, he was surrounded by other officers. He threw down his gun and surrendered.
After he was taken into custody, defendant agreed to give blood and urine samples. Experts later extrapolated from those samples that defendant probably had a blood-alcohol content of approximately .17 percent at the time of the crimes.
II. THE TRIAL
Defendant was charged in a ten-count indictment for his conduct in connection with the foregoing events. The first three counts, discussed below, charged defendant with aggravated murder, for intentionally killing Hall: (1) during the course of and in the furtherance of and in immediate flight from an attempted robbery; (2) in the course of and in the furtherance of and in immediate flight from an attempted second-degree kidnaping; and (3) in an effort to conceal his identity as the perpetrator of an attempted murder. The other seven charges concerned defendant's conduct with respect to Elliot, Edwards, Riley, and the driver of the truck. Defendant pled not guilty to all charges.After a jury trial, he was acquitted of one count of attempted murder and convicted on all the other counts. After a penalty-phase proceeding, defendant was sentenced to death.
Defendant requests that this court grant him a new trial and assigns 20 claims of error, all relating to the guilt phase of his trial. We have considered each of defendant's assignments of error. Several of those assignments were not preserved for review or otherwise are not well taken. Other assignments of error present questions that do not warrant discussion in this opinion because they have been resolved in other decisions by this court. We address the remaining issues in the order in which the events giving rise to the assignments occurred during the proceedings below. As we shall explain, we also address a matter that was not raised by defendant, but that arguably constitutes an error apparent on the face of the record.
III. SUFFICIENCY OF THE INDICTMENT
Defendant argues that the first three counts of the indictment, for aggravated murder, are impermissibly vague. Defendant did not demur to those charges, but argues nonetheless that the trial court should have stricken them on its own motion. Those counts state:
"Count 1 "AGGRAVATED MURDER
"The said defendant, on or about August 22, 1992, in the County of Multnomah, State of Oregon, did unlawfully and intentionally attempt to commit the crime of Robbery in the First Degree and in the course of and in the furtherance of and in the immediate flight from said crime which the said defendant was attempting to commit, the said defendant personally and intentionally did cause the death of another human being, to-wit: William Hall, a person who was not a participant in the crime, contrary to the Statutes in such
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