345 Or 551 | Omnilex

Testo completo

551
Argued and submitted November 6, 2007, judgment of conviction and sentence of
death affirmed December 31, 2008
STATE OF OREGON,
Respondent,
v.
MICHAEL ANDRE DAVIS,
Appellant.
(CC 020633788; SC 8053071)
201P3d185

State v. Davis

Cite as 345 Or 551 (2008) 	552-a

552-b 	State v. Davis
CJS, Constitutional Law§ 1016.
En Banc
On automatic and direct review of the judgment of convic-
tion and sentence of death imposed by the Multnomah
County Circuit Court.
Michael McShane, Judge.
Robin A. Jones, Senior Deputy Public Defender, Salem,
argued the cause for appellant. With her on the briefs were
Ingrid Swenson, Executive Director, Peter Gartlan, Chief
Defender, and Meredith Allen, Deputy Public Defender,
Office of Public Defense Services.
David B. Thompson, Assistant Attorney General, Salem,
argued the cause for respondent. With him on the brief were
Hardy Myers, Attorney General, Mary H. Williams, Solicitor

Cite as 345 Or 551 (2008) 	552-c
General, and David B. Thompson, Kaye McDonald, Timothy
A Sylwester, and Heather Vogelsong, Assistant Attorneys
General.
LINDER,J.
The judgment of conviction and sentence of death are
affirmed.
Walters, J., concurred and filed an opinion.

552-d 	State v. Davis

Cite as 345 Or 551 (2008) 	553
LINDER,J.
On November 3, 1991, Gerald Phillips and Belinda
Flannigan were found dead in Room 24 at the Ara'Bel Motel
in Portland. Detectives investigated the case for several
weeks after the murders, and again in 1996, but came up
with no solid leads until 2002. Following its investigation of
the case in 2002, the state charged Michael Andre Davis
(defendant) and Edgar Lee Foreman with several counts of
aggravated murder for the deaths of Phillips and Flannigan. 1
Before trial, defendant and Foreman unsuccessfully moved
to dismiss the charges on the ground of preindictment delay.
The cases were severed for trial, and the charges against
Foreman were dismissed without prejudice. The case contin-
ued against defendant and, on October 28, 2005, a jury found
him guilty of all counts. After a penalty-phase proceeding,
the trial court sentenced defendant to death.
The case is now before this court on automatic and
direct review of defendant's judgment of conviction and sen-
tence of death. ORS 138.012(1). Defendant raises 14 assign-
ments of error, which he organizes into four categories:
(1) pretrial issues; (2) issues raised during trial; (3) constitu-
tionality of Senate Bill (SB) 936 (1997); and (4) constitution-
ality of Oregon's death-penalty scheme. In our view, four of
defendant's assignments of error merit discussion: (1) defen-
dant's assertion that the trial court erred in denying defen-
dant's motion to dismiss for preindictment delay; (2) defen-
dant's assertion that the trial court erred in denying defense
counsel's motions to withdraw; (3) defendant's assertion that
the trial court erred in denying defendant's motion for a mis-
trial based on the prosecutor's reference in his opening state-
ment to the testimony of a witness who failed to appear at
trial; and (4) defendant's assertion that the trial court erred
1 The state originally indicted defendant and Foreman on July 16, 2002; due to
further developments in the case, that indictment was dismissed. On November 8,
2002, defendant and Foreman collectively were reindicted on eight counts of aggra-
vated murder with a firearm and four counts of aggravated felony murder with a
firearm, and Foreman individually was indicted on two additional counts offelony
murder. For purposes of this review, the operative pleading is the subsequent
indictment of defendant for those first 12 counts.

554 	State v. Davis
in refusing to admit evidence of the contents of a police
report. 2 For the reasons set forth below, we reject defendant's
claims of error and, therefore, affirm his convictions and sen-
tence of death.
I. 	FACTS AND PROCEDURAL BACKGROUND
We view the evidence in the light most favorable to
the state, because the jury found defendant guilty. See State
v. Bowen, 340 Or 487, 489, 135 P3d 272 (2006), cert den,
549 US 1214 (2007) (stating that standard). On Sunday,
November 3, 1991, the manager of the Ara'Bel Motel noticed
that the door to Room 24 was open. That room was registered
to Belinda Flannigan. The manager looked inside and saw a
bloodied man against the wall. The manager immediately
called the police. Upon entering the room, the police found
the bodies of Gerald Phillips and Belinda Flannigan.
Detective Hill served as the lead detective on the
case, and Detectives Norman and Yamasaki joined her.
Detectives and criminalists photographed and videotaped
the scene extensively. Inside the room, investigators found
four .45 caliber shell casings, all of which had been fired from
the same pistol, and three spent bullets. (The fourth spent
bullet was later found in Phillips's body.) Investigators also
found several personal items and recently purchased food
products, but they found no useful fingerprints in the room.
Police also tested a gold Mercedes Benz parked in front of
Room 24, which belonged to Phillips's wife, for fingerprints,
but came up with nothing useful. Detective Hill interviewed
the resident of Room 21, who reported that she had heard a
loud noise that sounded like a gunshot sometime after
10:00 p.m. the night before, but could not pinpoint the exact
time.
Based on the state of the bodies when the medical
examiner's investigator arrived at the scene, the medical
examiner placed the time of death between 8:20 p.m. and
2 We have considered each of defendant's other assignments of error and each
of his supporting arguments. Those other assignments of error either have been
discussed by this court in previous cases and resolved against defendant, were not
preserved for review, or are not well taken. Further discussion of the issues would
not benefit defendant, the public, the bench, or the bar.

Cite as 345 Or 551 (2008) 	555
10:20 p.m. on November 2, 1991. The medical examiner
performed autopsies on both Phillips and Flannigan on
November 4. Based on the partially digested food in Phillips's
stomach, combined with information concerning the time
that Phillips last had eaten, the medical examiner concluded
that Phillips had died between 8:20 p.m. and 10:20 p.m. on
November 2. The medical examiner was unable to use the
undigested food in Flannigan's stomach to assess her time of
death, because the medical examiner had no information
about when she last had eaten.
According to the record of outgoing telephone calls
from the Ara'Bel Motel, the occupants of Room 23 made two
9-1-1 calls in the early morning hours of November 3, 1991.
The first had occurred at 2:55 a.m. and the second had
occurred at 2:58 a.m. Olivia and Paul Gattermeir were reg-
istered to Room 23, and each of them had called 9-1-1 to
report "pops" that sounded like gunfire coming from the room
next door. Detective Hill obtained a tape recording of the
9-1-1 calls and later interviewed Olivia about her call. Hill
memorialized the content of that interview in a written
report on November 7, 1991. That report recounts that Olivia
told Hill that she and Paul had come back from dinner
between 8:00 p.m. and 10:00 p.m. on November 2 and that
they had heard loud "pops" approximately 30 to 45 minutes
after they returned from dinner, well before the first 9-1-1
call was placed. The recording of the 9-1-1 calls was missing
at the time that defendant was indicted and never has been
recovered.
Detective Hill interviewed defendant shortly after
the murders and learned that he had met Flannigan some-
time in October 1991 at the Five Spot Tavern (Five Spot),
where she worked. At the time, defendant had been living
with Foreman. Defendant and Flannigan began dating, and
they eventually both moved into the apartment of Eddie
Bynum, one of defendant's associates. According to defen-
dant, six days before Flannigan's murder, Flannigan did not
return to the apartment at the end of her shift. 3 Defendant
later learned that Flannigan had resumed her relationship
3 Registration records from the Ara'Bel Motel show that Flannigan checked
into Room 24 on October 30, 1991, three days before her murder.

556 	State v. Davis
with 	her 	ex-boyfriend, 	Phillips. 	Flannigan 	returned 	to
Bynum's apartment three days later to retrieve her clothing.
Defendant, who was at the apartment when Flannigan
returned, told her that she could get her clothes when she
repaid $500 that she owed him. They argued about the debt,
and Flannigan left on foot without her clothing.
According to defendant's interview with Hill, on the
morning following 	the 	argument, 	Flannigan had called
defendant at Bynum's apartment and informed him that she
needed her clothing. She arrived at the apartment early that
afternoon in a Toyota that, according to defendant, she said
Phillips had bought for her. Defendant said that they talked
for a little while, that Flannigan retrieved some of her cloth-
ing, and that she then left for work. Later that night, defen-
dant went to the Five Spot to speak with Flannigan again.
Defendant further told Hill that Flannigan had
called him at about 4:00 a.m. on November 2, 1991, (the day
of the murders) and that he and Flannigan had spoken for
approximately three hours. Between noon and 1:00 p.m. that
day, Flannigan went to see defendant at Bynum's apartment.
They apparently drove to a park, but Flannigan's car broke
down. Flannigan had to get to work that evening, so they
called Bynum and asked him for a ride. Bynum picked them
up and dropped Flannigan off at the Ara'Bel Motel.
Defendant told Hill that he and Bynum had planned
that night to go to a friend's house to watch a local profes-
sional basketball game on television, but that he decided to
go home instead. Bynum dropped him off at their apartment
between 6:30 p.m. and 6:45 p.m. Defendant said that Bynum
had called him at the apartment during halftime, between
8:00 p.m. and 8:30 p.m., to tell him that he wasn't missing
anything because the cable TV connection had gone out.
Defendant said that, between 10:00 p.m. and 10:30 p.m., he
drove one of Bynum's cars to a Safeway store, bought beer
and a pack of cigarettes, and returned to the apartment.
When defendant returned, Bynum was there. A short time
later, Foreman arrived at the apartment with a friend.
Foreman, 	his 	friend, 	and 	defendant 	then 	went 	to 	the
New York Diner, a nightclub. According to defendant, they
remained there until closing, which was about 2:30 a.m. They

Cite as 345 Or 551 (2008) 	557
then tried to eat at a Lyon's restaurant and then at a Denny's
restaurant, but the restaurants were too crowded. According
to defendant, he returned to Bynum's apartment between
3:00 a.m. and 4:00 a.m. on November 3.
Bynum's statements to Hill were consistent with
defendant's statements. He confirmed that he and defendant
had dropped Flannigan off at the Ara'Bel Motel between
6:00 p.m. and 6:30 p.m. on November 2. Bynum also con-
firmed that he had telephoned defendant at the apartment
during halftime of the basketball game, which was sometime
between 8:00 p.m. and 8:30 p.m. Bynum further stated that,
when he returned home between 10:15 p.m. and 10:30 p.m.,
defendant was not at the apartment and had taken one of
Bynum's cars without permission. Bynum called Foreman to
ask about defendant's whereabouts, but, as he did, defendant
walked in carrying a 40-ounce bottle of beer.
Detective Hill interviewed Foreman on November 6,
1991. Foreman stated that, on November 2, 1991, he and two
friends--J osh Lowery and Erik Payne-had planned to go to
the basketball game at halftime and watch it in the arena.
Foreman told Hill that, when they could not get into the
game, they went to the Five Spot between 9:00 p.m. and
9:15 p.m., where Flannigan was dancing. Foreman and his
friends left the Five Spot soon after Flannigan finished her
shift, around 9:30 p.m. and 9:45 p.m., and went to a Safeway
store and then to a 7-Eleven store. After that, they dropped
Payne 	off 	at 	the 	University 	of 	Portland, 	went 	to 	a
McDonald's, and then went to Bynum's apartment sometime
between 10:30 p.m. and 11:30 p.m. to pick up defendant.
Foreman stated that the group, including defendant, then
went to the New York Diner and remained there until it
closed at about 2:30 a.m. Foreman told Hill that, after leav-
ing the New York Diner, they attempted to eat at Lyon's and
then at Denny's, but the restaurants were too crowded.
Foreman stated that they took defendant back to Bynum's
apartment between 4:00 a.m. and 4:30 a.m. on November 3,
1991.
Following up on Foreman's story, Detective Hill
interviewed Lowery on November 8, 1991. Lowery's descrip-
tion of events was consistent with Foreman's description,

State v. Davis
including that they had picked up defendant at Bynum's
apartment between 10:30 p.m. and 11:00 p.m. on November 2
and that they were with him until they dropped him off at the
apartment at around 4:00 a.m. on November 3. On several
occasions, Detective Hill attempted to contact Payne for an
interview, but could not locate him.
On November 12, 1991, Detective Norman inter-
viewed Gary Cline, a regular patron of the Five Spot, who
knew defendant and Flannigan. Cline informed Norman
that, on the evening of October 31, 1991, two days before
Flannigan's death, he had seen defendant and Flannigan
arguing in the parking lot. During that argument, Flannigan
told defendant that she did not want to see him anymore and
that she did not want him to visit her at the Five Spot.
According to Cline, defendant was visibly upset after hearing
that information. Cline walked up to the couple, but defen-
dant told Cline to go back inside and said that he would talk
to him later. Cline went back inside.
Cline informed Norman that he knew that defen-
dant and Flannigan had been arguing during the prior week,
that Flannigan was breaking off her relationship with defen-
dant, and that Flannigan had told a bartender that she did
not want defendant at the Five Spot anymore. Cline had also
heard that Flannigan was breaking up with defendant to get
back together with her old boyfriend, Phillips. Cline further
informed Norman that, after defendant had argued with
Flannigan, he was "moping around" over Flannigan ending
their relationship. Cline told defendant that dancers like
Flannigan were not worth it and to not worry about it any-
more. Cline told Norman that he had said to defendant,
"Come out here, I'm gonna beat your ass if you don't wise up."
Cline then started to walk out the door and defendant fol-
lowed. As they continued outside, Cline heard defendant
slide the hammer back on a pistol and then ask, "You know
what that is?" Cline replied that it sounded like a .45 caliber
pistol. "You're right," defendant confirmed. When they got
just outside the door and into the parking lot, defendant
showed the pistol to Cline, who then said, "It's a good thing it
isn't loaded." 	Defendant ejected a 	cartridge out of the
weapon, which landed on the ground near the door, and said,
"Well, it is." Cline replied, "It's a good thing we're friends."

Cite as 345 Or 551 (2008) 	559
Defendant then tucked the gun into his belt behind his back,
and he and Cline went back inside. 4 Cline told Norman that
he knew that defendant's pistol was a .45 caliber because he
had spent time in the military where he had seen .45 caliber
automatic pistols.
Based 	largely 	on 	Cline's 	statements, 	Norman
obtained a warrant to search defendant's person, Foreman's
residence (where defendant then resided) 5 and Foreman's
SUV, the vehicle in which Foreman generally drove defen-
dant around. On November 25, 1991, Norman and seven
other officers spent an hour and a half searching those three
areas for a .45 caliber weapon, associated ammunition, and
other items. The search was unsuccessful, however, and the
officers did not seize any evidence.
The investigation of the case stalled. Then, in late
1996, a person named Sammy Grihm, who apparently was
facing unrelated criminal charges, disclosed information to
police about defendant's involvement in the murders. 6 Grihm
had been staying in Portland with his sister, Tina Spann,
who was in a sporadic relationship with defendant and had
lived with him for several years in the mid-1990s. Grihm told
detectives that he had overheard two conversations in which
defendant and Spann talked about Flannigan and Phillips,
and that defendant had admitted killing them.
Specifically, according to Grihm, in the first conver-
sation, Spann had said to defendant something to the effect
of, "I know you killed those two people," and defendant
replied 	"yeah," confirming that he 	had. 	Grihm further
reported that defendant had said that the two victims just
According to Cline, defendant did not pick up the cartridge after their
exchange in the parking lot of the Five Spot. At the pretrial hearing on defendant's
motion to dismiss for preindictment delay, Norman testified that he did not go to
the tavern to look for it after interviewing Cline during the investigation of the case
in November 1991. Norman admitted that the cartridge would have been a proba-
tive piece of evidence, especially if its numbers, manufacturer, and ejection pattern
matched those of the casings found in Room 24.
In a subsequent conversation with Detective Hill on November 11, 1991,
Bynum likewise told Hill that defendant, after breaking up with Flannigan, had
moved out of Bynum's apartment and back in with Foreman.
6 In 1996, Detective Hill was killed in a plane crash while on vacation. Other
detectives therefore took over the investigation.

560 	State v. Davis
had returned from the store and that Flannigan had wine
and food "all laid out." Defendant also said that, initially, he
was not going to shoot "the punk," referring to Phillips, but
when Phillips came at him, defendant shot him. Defendant
said that he then slapped Flannigan and, afterwards, shot
her twice in the head. Grihm told the detectives that he later
spoke with Spann about defendant's statements and that she
confirmed that defendant had killed two people. She told
Grihm that the murders had taken place at the Courtesy
Inn. 7
The second conversation, in which Grihm had heard
defendant admit to killing Flannigan, was shorter. Grihm
heard defendant order Spann to come into the bedroom, and
Spann replied something to the effect of, "I better, or you'll
kill me like you did that bitch." Defendant replied: "Yeah, I
shot that bitch two times, I ain't going to lie, yeah, I did it, I
did it, period[.]"
After Grihm related those conversations to the
detectives, the detectives interviewed Spann. Spann did not
back up Grihm's statements. Spann agreed to a polygraph
examination, but the results were inconclusive. Ultimately,
the detectives were unsure who to believe, but they suspected
that Grihm was not being truthful and was embellishing.
At that point, the investigation of the case stalled
again. The next break in the case did not come until April
2002. At that time, detectives learned from an inmate in the
Oregon State Penitentiary that defendant had admitted to
another inmate, Ronald Teal, that he had killed Flannigan
and Phillips. Detectives interviewed Teal on May 17, 2002.
Teal informed the detectives that he had been defendant's
weightlifting partner when they were in prison together.
Teal said that defendant had told him that Flannigan had
stolen $70,000 from Bynum and had purchased a Mercedes
Benz for Phillips. According to Teal, defendant characterized
himself as a hit man for "Fast Eddie," referring to Bynum,
and defendant described in detail how he had murdered
Flannigan and Phillips. After interviewing Teal, detectives
7 Sometime after the murders, the Ara'Bel Motel was renamed the Courtesy
Inn.

Cite as 345 Or 551 (2008) 	561
interviewed defendant again to determine whether he stood
by the original statements that he had made in 1991 to
Detective Hill. To that end, Detective Winn went line by line
through Hill's report of defendant's interview, and defendant
confirmed that his statements in that report were correct.
Detectives also contacted Bynum, who was then
under indictment for drug trafficking. They interviewed him
on June 5, 2002. Initially, Bynum confirmed the statements
that he had made to detectives in 1991. The next day, how-
ever, Bynum and his attorney met with detectives to negoti-
ate a deal in which the state would agree to a reduction in
Bynum's sentence on the drug trafficking charge in exchange
for his participation in the case against defendant for the
murders of Flannigan and Phillips. At that meeting, Bynum
changed his story in one regard: he reported that he could not
remember whether he had telephoned defendant during half-
time of the basketball game. Thus, Bynum no longer corrob-
orated defendant's whereabouts from 8:00 p.m. to 8:30 p.m.
on the night of the murders. Bynum otherwise confirmed the
accuracy of his original statements. Bynum added, however,
that, after the 1991 interview with detectives, he asked
defendant whether he had killed Flannigan and Phillips and
defendant said, "Yeah, I killed them, Cuz." Bynum further
reported that defendant had made a reference to the fact that
Bynum's family could be killed as easily as Flannigan and
Phillips were killed. Bynum interpreted that comment as a
threat.
On July 8, 2002, detectives interviewed another
inmate, George Modaff, who had been part of defendant's
weightlifting circle in prison. Modaff confirmed that Teal was
defendant's regular workout partner and that defendant and
Teal were very close. Modaff further informed detectives
that, on one occasion, defendant had talked about having
problems with a black pimp and a white girl, referring to
Phillips and Flannigan, and told Modaff that, "I got them
motherfuckers." Modaff learned from defendant that both
victims had been shot. 	Modaff also reported that their
weightlifting circle grew to include Stanley Ford and Eddie
Lee Davis. Modaff asked defendant why he had let Ford and
Davis join the group, and defendant replied something to the
effect of, "You keep your friends close, and your enemies even

State v. Davis
closer." Modaff asked defendant what he meant by that, and
defendant explained that he had killed a member of Davis's
family. 	Investigators 	later 	confirmed 	that 	Phillips 	was
related to Eddie Lee Davis.
In light of those new developments, Detective Winn
renewed efforts to track down Payne, who had been with
defendant on the night of the murders, but whom Detective
Hill could not locate for an interview in 1991. Winn discov-
ered that Payne was in Helsinki, Finland, and interviewed
him over the telephone on October 25, 2002. Payne informed
the detective that, on the night of the murders, he had been
in Foreman's SUV with Lowery, defendant, and a fifth per-
son, whom he could not remember, and that Foreman had
been 	driving. 	Payne 	stated 	that 	defendant 	had 	been
extremely angry and upset over $500 that Flannigan had sto-
len from him and used to buy a car for another man. Accord-
ing to Payne, while defendant was "ranting and raving"
about how he was going to kill Flannigan, he was loading a
.45 caliber pistol and telling the others in the vehicle that,
once they dropped him off at "ya'll know where," they had
better "get some place to be seen" within the next 45 minutes
to establish an alibi. Payne remembered that Foreman and
Lowery tried to talk defendant out of killing Flannigan. After
failing in that effort, they dropped defendant off between
9:00 p.m. and 10:00 p.m. at a motel where, as Payne was
aware, Flannigan was known for taking men. Payne also
remembered that defendant wanted to be dropped off within
that time frame because Flannigan would finish her shift at
the Five Spot around then. Payne told the detective that,
once they arrived at the motel, only defendant got out of the
car.
Payne said that he remembered the events of that
night because he rarely had seen anyone that upset before
and the images of defendant raging about how he was going
to kill Flannigan, while loading the gun and talking about
having 45 minutes to get away, stuck in his mind. Payne was
so convinced that defendant would actually go through with
killing Flannigan that he demanded to be taken back to his
dormitory at the University of Portland after defendant was
dropped off at the motel. Finally, Payne told the detective
that, shortly after he had learned about the murders in the

Cite as 	563
news, Foreman called him and then handed the telephone to
defendant, who threatened to kill Payne if he talked to the
police. Payne explained that, after that call, he avoided any
contact with the police.
Payne returned to Portland from Finland to testify
before the grand jury on November 7, 2002. Also on that date,
the 	prosecutor 	and 	detectives 	reinterviewed 	Lowery. 8
Lowery, in describing the events of November 2, 1991,
revealed several details that he previously had not told
police. Specifically, he said that, after failing to get into the
basketball game at halftime, he and Foreman had met defen-
dant in the parking lot of a bar across the street from the
Ara'Bel Motel between 9:00 p.m. and 10:00 p.m. According to
Lowery, defendant and Foreman talked briefly and then both
were gone for up to 10 minutes. Lowery did not pay attention
to where they went. When Foreman got back into the car,
Foreman was "disco[m]bobulated and confused" and said,
referring to defendant, "Fuck [defendant], let him do what-
ever he's going to do. We're out of here."
According 	to 	Lowery, 	they 	then 	drove 	to 	the
University of Portland without defendant, dropped Payne off
at his dormitory, and went to the New York Diner. While
they were there, defendant called Foreman on his cell phone,
and they left to pick him up at Bynum's apartment. On the
way, Foreman told Lowery that defendant had just killed two
people. They picked up defendant and returned to the New
York Diner, where they stayed until closing. After looking for
some place to eat, they took defendant back to Bynum's
apartment. Lowery also told detectives that, after police ini-
tially interviewed defendant about the murders in 1991,
Lowery and Foreman constructed an alibi and agreed to tell
police the truth about everything that had happened that
night, but to leave out the trip to the parking lot across from
the Ara'Bel Motel. Lowery said that defendant later thanked
8 Lowery's interview on November 7, 2002, the day of the grand jury hearing,
was not recorded. After testifying before the grand jury, Lowery left Portland, but
he returned on January 28, 2003, to be interviewed again. Detective Winn was
present at both interviews. At defendant's pretrial hearing, based on his recollec-
tion of those interviews, Winn testified about Lowery's statements. Thus, Lowery's
statements, as related in the record, consist in part of statements made to police
after defendant had been indicted.

564 	State v. Davis
him for providing an alibi. Lowery, like Payne, also testified
before the grand jury on November 7, 2002. 9
The grand jury indicted defendant on November 8,
2002, on eight counts of aggravated murder with a firearm
and four counts of aggravated felony murder with a firearm
for the murders of Flannigan and Phillips. As explained in
detail below, after lengthy pretrial proceedings, the case
against defendant went to trial before a jury on October 11,
2005, and, on October 28, 2005. The jury found defendant
guilty of all counts. Following a penalty-phase proceeding,
the trial court sentenced defendant to death.
II. 	DISCUSSION
As noted earlier, we address four of defendant's 14
assignments of error. First, we discuss whether preindict-
ment delay required the trial court to grant defendant's
motion to dismiss. Second, we address whether the trial court
erred in denying defense counsel's motions to withdraw.
Third, we discuss whether the prosecutor's reference in his
opening statement to the expected testimony of a witness
required a mistrial when the witness failed to appear for
trial. Finally, we address defendant's claim that the trial
court erred in refusing to admit evidence of the contents of a
police report.
A. 	Preindictment Delay
In his first assignment of error, defendant argues
that the trial court erred in denying his motion to dismiss for
preindictment delay. This court has not identified expressly
what standard of review applies to the denial of a motion to
dismiss for preindictment delay. Both parties take the posi-
tion that this court reviews the trial court's ruling for errors
of law. We agree with that standard. Additionally, to the
extent that the trial court resolved disputed factual issues in
making its ruling, we will not disturb the trial court's express
In addition to the individuals described in the text, detectives also inter-
viewed several other people who had either come into contact with defendant over
the years and to whom defendant admitted. in varying degrees of detail, that he
had committed the murders or had heard through others that defendant had com-
mitted the murders.

Cite as 345 Or 551 (2008) 	565
or implicit factual findings as long as those findings are sup-
ported by the evidence. See Ball v. Gladden, 250 Or 485, 487,
443 P2d 621 (1968) (stating that standard).
Before trial, defendant moved to dismiss the indict-
ment on the ground that the 11-year period between the date
of the murders and the date of his indictment violated his
right to due process under the Fifth and Fourteenth Amend-
ments to the United States Constitution. 10 In support of his
motion, defendant urged that the state "may have acted to
gain tactical advantage" or otherwise improperly delayed in
indicting him. 	Defendant further 	urged 	that the 	delay
resulted in actual prejudice to his ability to mount an effec-
tive defense. In support of his claim of prejudice, defendant
identified several items of potential evidence that were no
longer available to him. Those evidentiary items fell into two
categories: (1) items procured by the police in 1991 that now
are missing; and (2) items or information that defendant
claimed should or could have been obtained through diligent
investigation, but were not, and are no longer available.
Following an extensive pretrial hearing, the trial
court made detailed findings of fact about the prosecution's
investigatory efforts during the 11-year period between the
murders and the indictment. After making those findings,
the trial court identified the legal standard that it believed
applied to defendant's motion and concluded that defendant
had failed to make the showing necessary for dismissal of the
charges against him based on prosecutorial delay:
"I believe the standard is substantial prejudice and that
the delay, in effect, either by* * * negligence, recklessness,
10 In the trial court, defendant also argued for dismissal on the theory that the
state's delay in indicting him violated his rights to a speedy trial under both Article
I, section 10, of the Oregon Constitution, and under the Sixth Amendment to the
United States Constitution. On review, defendant acknowledges that, for purposes
of both the state and federal speedy trial guarantees, "the time elapsing prior to an
arrest or a formal charge is not taken into consideration in determining whether a
defendant has been given a speedy trial." State v. Serrell, 265 Or 216, 219, 507 P2d
1405 (1973); see also United States v. Marion, 404 US307, 313, 92 SCt455, 30 LEd
2d 468 (1971) ("[i)n our view, however, the Sixth Amendment speedy trial provision
has no application until the putative defendant in some way becomes an 'accused,'"
which occurs after indictment). In this case, defendant's claim is predicated only on
delav that occurred before his arrest and indictment. In his brief to this court,
defe~dant presses only his federal due process argument.

566 	State v. Davis
or intent[,] had the purpose of being a tactical advantage.
* * *
"In this particular case, having factually found what I
have found, and recognizing that eleven years is a hugely
long time, I am going to deny the motion to dismiss. First of
all, I cannot even find negligence here. There was a conspir-
acy of circumstances that was really kind of tragic.
"I draw a distinction between things that one could
argue in retrospect should have been done or might have
been done in an investigation. Those are issues of weight to
be given to the investigation when and if the case proceeds
to trial and witnesses are cross-examined.
"I find that due to the solidity of [defendant's] and
Mr. Foreman's alibis[.] * * * Everyone's statements fell
together and held together. I don't see that the police had
an obligation to investigate in the sense that [defendant]
has suggested[.]** *
"At that point in time until '96 when Detective Hill was
killed nothing really developed, and it was not until 2002
that people's stories started to change; that witnesses came
forward whose motives I will not comment on. That's a-
a fact finder at trial issue.
"But it was not until then that there was any hint other
than that of a broken relationship that would have sug-
gested [defendant] was, in fact, the person who had com-
mitted the murders.
"I'm sure people suspected it, but the time frames being
what they were known to be, there was no reason, no basis,
really, upon which the State could have said in good faith
that they could have at that time proved that [defendant]
was the person who committed the homicides beyond a
reasonable doubt.
"So I would not find that the delay was intentional or
reckless or negligent. Substantial prejudice means signifi-
cant. It means that somehow or another the ability of
[defendant] 	to 	defend himself has 	been compromised
through no fault of his own in a way that makes it virtually
impossible to defend himself.
"The only thing in this case that is different from what
happens in many cases in terms of quality of investigation
is that the passage of time has caused the loss of the 911

Cite as 345 Or 551 	567
tape. We do know the time. We do have interviews with the
caller, and the caller's companion.! 11 l
"I could not find that that, the absence of supporting
evidence other than the testimony of other witnesses of
[defendant's] alibi[,] [t]he not seizing things from Room 24
in the Ara'Bel of which we have pictures, and the testimony
of criminalists, 	constitutes 	a 	substantial prejudice to
[defendant]."
As the quoted material shows, the trial court specif-
ically found that the state's delay in indicting defendant was
not intentional, reckless, or negligent. Instead, the trial court
found that the delay was due to the state's reasonable efforts
to investigate the case and to obtain sufficient evidence to
bring charges. In addition, the trial court concluded that
defendant had not been substantially prejudiced in his
defense of the case. 12
After making those findings and conclusions, the
trial court asked if either party wanted further factual find-
ings on any issues bearing on the motion to dismiss. The state
requested that the court make a finding as to when probable
cause existed to believe that defendant had committed the
murders. On that issue, and based on the evidence adduced
at the hearing, the state submitted that probable cause did
not exist until the summer of 2002. The trial court agreed and
affirmatively found that probable cause developed between
April and June of 2002, when police reinterviewed Bynum,
Lowery, 	Davis, 	and 	Foreman. 	The 	trial 	court 	further
explained that the "real break" in the state's case came in
11 Defendant's investigator interviewed both Paul and Olivia Gattermeir in
August and September 2003, respectively, concerning their observation of the
events at the Ara'Bel Motel, including their placement of the 9-1-1 calls. Both inter-
views were recorded and admitted into evidence at the pretrial hearing on defen-
dant's motion to dismiss.
'" Defendant urges that the trial court applied a legal test for prejudice that
placed too great a burden on defendant, by requiring defendant to show that it was
"virtually impossible to defend himself." If that were the legal standard that the
trial court applied, we would agree that was incorrect. When the trial court's com-
ments about the legal standard are considered in toto, however, we understand the
trial court to have followed the substantial and actual prejudice standard articu-
lated by federal courts. In all events, although we defer to the trial court's findings
of historical fact, an assessment of prejudice is, in the end, a legal question. Later
in this opinion, we analyze defendant's claim of prejudice without deference to the
trial court's recital of the legal standard.

568 	State v. Davis
April 2002, when the state learned that defendant had
admitted committing the murders to Teal. After making
those additional findings, the trial court denied defendant's
motion to dismiss for preindictment delay.
On review in this court, the parties' fundamental
dispute is over the legal test that applies to determine when
preindictment delay rises to the level of a federal due process
violation. In that regard, the parties agree that the test has
two prongs: substantial prejudice and the reasons for the
delay. The parties disagree, however, whether a defendant
must show that the government intentionally delayed in
indicting the defendant for an impermissible purpose, such
as to obtain a tactical advantage. Citing U.S. v. Barken, 412
F3d 1131, 1134 (9th Cir 2005), which represents a minority
view among the federal circuit courts, defendant argues that
intentional misconduct is not a necessary element of the test.
Instead, defendant urges, the correct analysis requires bal-
ancing the reasons for the delay against any actual prejudice
to defendant to determine whether the delay "offends those
fundamental conceptions of justice which lie at the base of
our civil and political institutions." Id. (internal quotes and
citations omitted); see also Jones v. Angelone, 94 F3d 900, 905
(4th Cir 1996) (following similar test). The state, on the other
hand, relies on the majority view among the lower federal
courts, which requires a defendant who can demonstrate
actual prejudice to his defense to further show that the gov-
ernment intentionally delayed to gain a tactical advantage or
to advance some other improper purpose. See, e.g., U.S. v.
Crouch, 84 F3d 1497, 1511-12 (5th Cir 1996), cert den, 519
US 1076 (1997) (citing cases and discussing rationale for
adopting the legal test endorsed by a majority of the federal
circuit courts).
This court only once before has addressed a claimed
due process violation based on preindictment delay. That
occurred more than 30 years ago, in State v. Serrell, 265 Or
216, 507 P2d 1405 (1973). In that case, the defendant sold
narcotics to an undercover agent and was indicted 141 days
later. In seeking dismissal based on preindictment delay, the
defendant argued that the state had all the information
needed to indict him on the date of the crime and that he had
been prejudiced by the delay in indicting him because he no
longer could recall his whereabouts on the day of the sale. Id.

Cite as 345 Or 551 (2008) 	569
In resolving the defendant's due process claim, this court
quoted the following passage from United States v. Marion,
404 US 307, 324-25, 92 S Ct 455, 30 L Ed 2d 468 (1971),
which, at the time, was the lead United States Supreme
Court decision on the constitutional significance of a lengthy
preindictment delay:
"[I]t is appropriate to note here that the statute of limita-
tions does not fully define the appellees' rights with respect
to the events occurring prior to indictment. Thus, the
Government concedes that the Due Process Clause of the
Fifth Amendment would require dismissal of the indictment
if it were shown at trial that the pre-indictment delay in this
case caused substantial prejudice to appellees' rights to a
fair trial and that the delay was an intentional device to
gain tactical advantage over the accused. However, we need
not, and could not now, determine when and in what cir-
cumstances actual prejudice resulting from pre-accusation
delays requires the dismissal of the prosecution. Actual
prejudice to the defense of a criminal case may result from
the shortest and most necessary delay; and no one suggests
that every delay-caused detriment to a defendant's case
should abort a criminal prosecution. To accommodate the
sound administration of justice to the rights of the defen-
dant to a fair trial will necessarily involve a delicate judg-
ment based on the circumstances of each case. It would be
unwise at this juncture to attempt to forecast our decision
in such cases."
(Internal citations omitted; emphasis added.) After quoting
from Marion, this court in Serrell declared that, "[i]n any
event," the defendant's only assertion of prejudice (his inabil-
ity to recall his whereabouts on the date of the offense) was
inadequate to carry his burden to demonstrate substantial
prejudice to his defense. Serrell, 265 Or at 220.
As the Supreme Court in Marion described, the gov-
ernment conceded in that case that an intentional delay for
purposes of securing a tactical advantage would suffice. The
Court implicitly accepted that concession, but ultimately
went on to decide the case based on the defendants' failure to
establish actual prejudice due to the delay. 13 Likewise, in
13 In Marion, three years had elapsed between when the government became
aware of the alleged criminal acts and the filing of the indictment. Marion, 404 US
at 308. The defendants moved to dismiss, because, they asserted, the delay was due
to the government's negligence or indifference in investigating the case. Id. at 310.

State v. Davis
Serrell, this court implicitly accepted the proposition that
intentional delay to secure a tactical advantage would satisfy
the reasons-for-the-delay prong of the test. As in Marion,
however, the defendant in Serrell did not make an adequate
showing of actual prejudice, and this court resolved defen-
dant's claim against him for that reason. Thus, neither
Marion nor Serrell resolved, one way or the other, whether a
due process violation can arise when excessive delay in
indicting a defendant is due to something other than inten-
tional 	prosecutorial misconduct. 	Indeed, in Marion, 	the
Supreme Court expressly reserved the question of"when and
in what circumstances actual prejudice resulting from pre-
accusation delays requires the dismissal of the prosecu-
tion[,]" reasoning that it would be "unwise" to attempt to fore-
cast its decision based on the limited record and the single
case before it. 404 US at 324-25.
A few years after Marion and Serrell were decided,
the Supreme Court in United States v. Lovasco, 431 US 783,
796-97, 97 S Ct 2044, 52 L Ed 2d 752 (1977), again deferred
the issue: "[N]either this Court nor any lower court has had a
sustained opportunity to consider the constitutional signifi-
cance of various reasons for delay." The Court therefore
declared that it would "leave to the lower courts, in the first
instance, the task of applying the settled principle[ ]" that
controls the inquiry-viz., that due process affords protection
"only" for violations of"those 'fundamental conceptions ofjus-
tice which lie at the base of our civil and political institu-
tions[.]' "Id. at 790, 797. As already noted, since Serrell, this
court has not again addressed a due process claim based on
preindictment delay. This court therefore has not addressed
whether reasons for preindictment delay, other than an
intentional delay to obtain a tactical advantage, may rise to
The district court dismissed the indictment after concluding that the government
must have been aware of the relevant facts soon after the occurrence of the acts and
that there must have been prejudice due to the three-year delay. Id. The Supreme
Court rejected the defendants' Sixth Amendment speedy trial argument, and then
turned to the defendants' argument under the Due Process Clause. Id. at 313-23.
Ultimately, the Court held that the defendants failed to demonstrate that the
preindictment delay violated the Due Process Clause: "No actual prejudice to the
conduct of the defense is alleged or proved, and there is no showing that the
Government intentionally delayed to gain some tactical advantage over appellees
or to harass them." Id. at 325.

Cite as 345 Or 551 (2008) 	571
the level of a due process violation. Neither has the Supreme
Court done so.
The lower federal courts have engaged that task,
however, and, as noted, have split into two camps. The major-
ity requires a showing that the government intentionally
delayed in indicting a defendant either to gain a tactical
advantage or for some equally impermissible purpose. See,
e.g., Crouch, 84 F3d at 1511 (discussing majority view). The
minority view-endorsed by only the Fourth and Ninth
Circuits-applies a "more lenient" and open-ended balancing
test to determine if the delay "offends those fundamental con-
ceptions of justice which lie at the base of our civil and polit-
ical institutions." Barken, 412 F3d at 1134 (internal quota-
tion marks and citations omitted); Angelone, 94 F3d at 905
(describing minority test as "more lenient" and adhering to
that test). Under the minority view, it is less clear what rea-
sons will make out a due process violation. In part, the
answer depends on the extent to which a defendant has been
prejudiced, because that determines "where the fulcrum for
the balancing is to be placed." United States v. Mays, 549 F2d
670, 678 (9th Cir 1977). Intent, recklessness, and even negli-
gence may suffice. United States v. Moran, 759 F2d 777, 781-
82 (9th Cir 1985), cert den, 474 US 1102 (1985). As the Ninth
Circuit has explained:
"The greater the length of the delay and the more substan-
tial the actual prejudice to the defendant becomes, the
greater the reasonableness and the necessity for the delay
will have to be to balance out the prejudice. However,
despite the degree of actual prejudice, for a judgment in
favor of dismissal, there must be some culpability on the
government's part either in the form of intentional miscon-
duct or negligence."
Mays, 549 F2d at 678 (citations omitted). Although that split
of lower federal court authority has been in place for many
years, 	the 	United 	States 	Supreme 	Court 	thus 	far 	has
declined to resolve it. See Hoo v. United States, 484 US 1035,
1035-36, 108 S Ct 742, 98 L Ed 2d 777 (1988) (White, J., dis-
senting from denial of certiorari) (acknowledging the "signif-
icant disagreement in the lower courts over the proper test"

572 	State v. Davis
and stating that he would grant certiorari to resolve the "con-
tinuing conflict among the Circuits on this important ques-
tion of constitutional law").
Given that legal 	landscape, 	our task ordinarily
would be to make our best prediction of the federal test that
the Supreme Court would endorse, based on that Court's
precedents and our informed understanding of the due proc-
ess principle involved. Making that prediction is complicated
by the fact that, as one court has aptly observed, the Supreme
Court's opinions in Marion and Lovasco each "contains some
language that can give comfort" to both the majority and
minority lower federal court views. Crouch, 84 F3d at 1510.
The majority view, by requiring intentional delay for an
improper purpose, such as to gain a tactical advantage, sets
the bar high. But doing so is consistent with the Court's
admonition that statutes of limitation provide the primary
protection against stale prosecutions and 	that the 	Due
Process Clause has "a limited role" to play in protecting a
defendant from excessive preindictment delay. Lovasco, 431
US at 789; see Marion, 404 US at 323-24 (describing statutes
of limitations as the primary protection provided by law for
prejudice resulting from the passage of time between crime
and arrest or charge). On the other hand, the "more lenient"
balancing test embraced by the minority view is consistent
with the Court's unwillingness to declare that only inten-
tional delay violates due process, and its invitation to lower
courts to assess on a case-by-case basis the wide-ranging cir-
cumstances that preindictment delays may involve. Lovasco,
431 US at 796-97; Marion, 404 US at 324-25. 14
14 Since Marion and Louasco were decided, the Supreme Court has character-
ized those cases as requiring a defendant, in establishing a due process violation for
preindictment delay, to prove a heightened level of culpability on the government's
part as the reason for its delay in bringing charges against a defendant. See United
States u. Gouveia, 467 US 180, 192, 104 S Ct 2292, 81 L Ed 2d 146 (1984) (a defen-
dant must "prove that the Government's delay in bringing the indictment was a
deliberate device to gain an advantage over him and that it caused him actual prej-
udice in presenting his defense"); see also United States u. $8,850, 461 US 555, 563,
103 S Ct 2005, 76 L Ed 2d 143 (1983) (a due process claim based on preindictment
delay can prevail only if the defendant shows "that the Government delayed seek-
ing an indictment in a deliberate attempt to gain an unfair tactical advantage over
the defendant or in reckless disregard of its probable prejudicial impact upon the
defendant's ability to defend against the charges"). The Court has done so, how-
ever, only in dicta. Meanwhile, the Court has continued to decline review of cases
in which it could resolve the split in the lower federal courts. See, e.g., Hoo, 484 US

Cite as 345 Or 551 	573
We conclude, 	however, 	that this case does 	not
require us to predict what test the Supreme Court is likely to
endorse. Under either test adopted by the lower federal
courts, as well as any middle-ground test between them,
defendant cannot succeed on his claim of a due process
violation.
As defendant effectively concedes, the record con-
tains no evidence that the state intentionally delayed in
indicting defendant for an impermissible purpose, such as to
gain a tactical advantage. Even if the evidence on that score
were disputed-and it is not-the trial court's factual find-
ings defeat any conclusion that the state intentially delayed
for reasons amounting to prosecutorial misconduct. Defen-
dant's due process claim therefore fails under the majority
test, regardless of whether he suffered actual prejudice. See
Crouch, 84 F3d at 1511 (due process violation based on prein-
dictment delay requires a showing of bad faith or improper
purpose on the government's part).
Defendant runs 	into 	equal 	difficulty 	under 	the
minority "balancing" test that he invites us to adopt. As we
have described, that test is more open-ended than the major-
ity test in terms of the reasons for delay that a court may con-
sider. But the prejudice inquiry under the two tests is equally
exacting. A defendant must prove that he or she suffered
"actual, non-speculative prejudice" from the delay by show-
ing "exactly how the loss of evidence or witnesses was preju-
dicial." Barken, 412 F3d at 1134 (citations and quotes omit-
ted). Defendant's showing of prejudice in this case falls short
of that standard.
As we described earlier, defendant's claim of sub-
stantial prejudice is based on two groups of potential items of
evidence that are no longer available: (1) items procured by
the police in 1991 that are now missing; and (2) items or
information that should or could have been obtained through
diligent investigation but were not, and no longer can be
obtained. Taking the second category of items first, defen-
dant's list of unavailable items or information that police
at 1035-36 (White, J., dissenting from denial of certiorari). We therefore find no
guidance in the Court's later characterizations of its holding in Lovasco and
Marion.

State v. Davis
failed to investigate or collect includes (1) bullet trajectories
from Room 24; (2) trace evidence from the crime scene and
the cars driven by defendant and Foreman; (3) fingerprints
on shell casings found at the scene; (4) interviews of the motel
guests who occupied rooms near Room 24; (5) the cartridge of
ammunition that Cline had told detectives defendant had
ejected onto the ground near the Five Spot; (6) the clothing
that defendant had worn on the evening of November 2,
1991; and (7) interviews of Safeway personnel where defen-
dant stated that he had purchased beer and cigarettes.
Defendant also faults the state for failing to interview or
otherwise 	investigate 	other people 	who 	may 	have 	had
motives to kill Flannigan or Phillips.
Much, if not all, of that evidence, however, likely
became unavailable weeks or months after the crimes were
committed. Thus, the disappearance or dissipation of that
evidence was a result of investigatory steps not taken, rather
than delay qua delay in bringing the indictment. Accurately
characterized, defendant's claim seems to be directed to the
state's failure to collect or preserve potentially useful evi-
dence. Such a claim-commonly referred to as "negligent
investigation"-would require a showing of bad faith on the
state's part before a due process violation would arise, which
defendant does not assert. See Arizona v. Youngblood, 488
US 51, 57-58, 109 S Ct 333, 102 L Ed 2d 281 (1988) (so
holding). 15
In all events, even assuming that any of the items or
information that defendant lists became unavailable because
of the 11-year charging delay, defendant's claim of prejudice
based on the unavailability of those items and information is
purely speculative. For example, defendant speculates that
the Safeway clerk might have provided testimony that could
have exonerated defendant. Defendant similarly speculates
that inhabitants of the Ara'Bel on the night of the murders
might have testified consistently with defendant's theory.
The same is true of the items of evidence that police did not
Thus. to the extent that defendant's claim is more properly characterized as
one based on inadequacies in the state's investigation rather than the delay in that
investigation, he cannot have the benefit of the more open-ended balancing test
used by a minority of circuits for claims of preindictment delay.

Cite as 345 Or 551 	575
pursue in their investigation-such as defendant's clothing,
bullet trajectories, trace evidence in the cars, and so on.
Those potential witnesses and possible items of evidence
might have shed light on the case, and the light they shed
might have been favorable to defendant. Or they might have
had no evidentiary value, or they might have bolstered the
case against defendant. Any conclusion requires speculation.
Defendant therefore is left to contend that "[b]ecause the
record demonstrates that the state could have discovered and
preserved 	that 	evidence 	in 	the 	exercise 	of reasonable
diligence, the loss of the evidence should be presumed to be
prejudicial to defendant's ability to present an effective
defense." (Emphasis added.) Marion and Serrell, however,
both require that a defendant show actual, not presumed,
substantial prejudice. Marion, 404 US at 324-25; Serrell, 265
Or at 219-20. Simply identifying items and information of
undetermined evidentiary value that the police theoretically
could have obtained does not satisfy defendant's burden to
demonstrate actual prejudice.
As to the first category of evidence (items that police
had in their possession and later lost), defendant emphasizes
the 	loss 	of the 	recording 	of the 	9-1-1 	calls 	that 	the
Gattermeirs 	had 	made 	in 	the 	early morning hours 	of
November 3, 1991. Defendant argues that the 9-1-1 recording
would 	have 	"given 	rise 	to 	a 	reasonable inference 	that
Flannigan was shot sometime after midnight, when defen-
dant's whereabouts were accounted for." Defendant's theory
is that the substance of the lost recording could support his
claim that shots were fired around 3:00 a.m., the time of the
9-1-1 calls, when defendant has an undisputed alibi. 16
The loss of the recording does not establish actual
prejudice, because the asserted value of its contents is, again,
entirely speculative. Defendant's theory requires the court to
presume that, even though Phillips was murdered around
16 Defendant does not claim that the lost 9-1-1 recording qualified as exculpa·
tory Brady evidence, such that the loss would establish a violation of defendant's
due process rights regardless of whether the state acted in good or bad faith. See
Brady v. Maryland, 373 US 83, 87, 83 S Ct 1194, 10 L Ed 2d 215 (1963) (regardless
of the government's good or bad faith, the government violates a defendant's due
process rights if it does not disclose exculpatory evidence or fails to preserve evi-
dence that might exonerate the defendant).

576 	State v. Davis
10:00 p.m., as the autopsy concluded, Flannigan was not
murdered until shortly before 3:00 a.m., about 5 hours after
Phillips's death. Whether the substance of the calls-as
opposed 	to 	their timing-would 	support that 	theory is
unknown. Nothing in the record, however, suggests that the
contents would support defendant in that regard. To the con-
trary, Detective Hill interviewed Olivia Gattermeir shortly
after the murders and summarized that interview in a report
that was admitted for pretrial purposes. Detective Winn also
testified about the substance of the 9-1-1 calls during the pre-
trial hearing on defendant's motion. According to that evi-
dence, the Gattermeirs explained that the timing of their
9-1-1 calls did not coincide with when they had heard the
"pops," and that, in fact, they heard the shots between
8:30 p.m. and 10:45 p.m. In addition, a defense investigator
located and interviewed the Gattermeirs before trial, and
both had recalled the events of that night. Apparently, both
were available to testify at trial. Nothing in the record sug-
gests that the content of the recording of 9-1-1 calls differed
from anything that the Gattermeirs later told police or would
have said if called to testify. Under those circumstances, and
without some basis to believe that the contents of the lost
recording would bolster defendant's theory, the unavailabil-
ity of the 9-1-1 recording does not establish actual and sub-
stantial prejudice, as required under either the minority or
majority federal tests for preindictment delay.
Even if the prejudice on which defendant relies is
sufficient to be placed on the scale for purposes of the minor-
ity balancing test, it at most would weigh very lightly. That,
in tum, would mean that the reasons for delay must weigh
heavily in defendant's favor and against the state. Mays, 549
F2d at 678 (balancing test entails a sliding scale in which
"the more substantial the actual prejudice to the defendant
becomes, the greater the reasonableness and the necessity
for the delay" must be). Here, however, as a matter oflaw, the
reason for the state's delay in indicting defendant-i.e., the
need to sufficiently investigate the crimes and obtain proba-
ble cause to bring charges-does not tip the scales at all.
The Supreme Court has explained that the time nec-
essary to in good faith investigate a crime-so-called "inves-
tigative delay"-is "fundamentally unlike delay undertaken

Cite as 345 Or 551 	577
by the government solely 'to gain tactical advantage over the
accused.'" Lovasco, 431 US at 795 (quoting Marion, 404 US
at 324). Prosecutors do not deviate from fundamental concep-
tions of justice when they defer indictment until they have
probable cause. Id. at 795-96. Neither are prosecutors obli-
gated to seek an indictment as soon as probable cause exists.
Id. Good faith investigative delay therefore does not deprive
a defendant of due process, "even if [the] defense might have
been somewhat prejudiced by the lapse of time.'' Id. at 796.
The Ninth Circuit is in accord. Despite whatever showing of
prejudice a defendant may make, good faith investigative
delay does not violate due process. Moran, 759 F2d at 783
(investigative delay does not constitute a deprivation of due
process, even when a defendant might have been somewhat
prejudiced by the delay); United States v. Walker, 601 F2d
1051, 1055-57 (9th Cir 1979) (same). In other words, the
Supreme Court may have left open the general question of
the "constitutional significance of various reasons for delay"
in bringing charges against a defendant, Lovasco, 431 US at
797, but it has foreclosed one-good faith efforts to investi-
gate-as a basis for violating due process. Id. at 796.
Here, the trial court made extensive factual findings
about the state's reason for delay, none of which defendant
challenges, and all of which are supported by the record. The
trial court expressly found that the charging delay in this
case occurred because the investigation stalled in 1991,
shortly after the murders, and then stalled again in 1996-
each time due to defendant's skill in constructing an alibi.
Significantly, the trial court further found that the state did
not have probable cause until at least April 2002, shortly
before defendant was indicted. That was the point at which
police learned from Teal that defendant had made incrimi-
nating admissions while in prison. As the trial court empha-
sized, only then did several key witnesses change their sto-
ries. In particular, Bynum, Lowery, and Payne came forward
with incriminating information in 2002 that they previously
had 	withheld. 	Until 	then, 	defendant's 	and 	Foreman's
accounts 	were 	consistent with information 	provided 	by
Bynum and Lowery, creating a solid alibi for defendant.
From that evidence, the trial court described the
lengthy delay as a "conspiracy of circumstances" caused by

578 	State v. Davis
"the solidity of [defendant's] and Mr. Foreman's alibis." The
trial court specifically found that the state, in waiting until
2002 to indict defendant, did not act intentionally to gain a
tactical advantage or otherwise act in bad faith. The trial
court further found, expressly, that the state did not act neg-
ligently or recklessly. 	Those findings refute defendant's
assertions that the state "passively permit[ted] evidence that
it knows to be exculpatory to become unavailable due to the
passage of time" and "simply stopped investigating for no
apparent reason." In effect, the trial court's findings establish
that the lengthy preindictment delay in defendant's case was
the result of the state's good faith efforts to investigate the
case and to gather needed evidence.
In sum, following either the majority or minority
tests adopted by lower federal courts, the trial court properly
denied the motion to dismiss based on defendant's claim of
preindictment delay. Under the majority test, defendant had
to show that the state intentionally delayed for an impermis-
sible purpose, such as to gain a tactical advantage. Defen-
dant neither attempted to nor made such a showing. Under
both the majority and minority tests, defendant has failed to
demonstrate actual and substantial prejudice to his ability to
defend against the charges as a result of the delay. Finally,
even if defendant arguably suffered some actual prejudice,
the delay was for a constitutionally permissible reason: to
investigate and obtain sufficient probable cause to bring
charges. For those reasons, the trial court did not err.
B. 	Withdrawal of Counsel
We turn next to defendant's challenge to the trial
court's refusal to permit defendant's two trial counsel to with-
draw from their representation of defendant. Defense coun-
sel twice moved to withdraw, and each time the trial court
denied the motions. 17 On review, defendant contends that the
At approximately the same time that defense counsel made their motions to
withdraw, defendant also moved for substitution of counsel. Defendant did so
based on what he considered to be a breakdown in the attorney-client relationship
that was so severe as to warrant new court-appointed counsel. On each motion, the
trial court inquired into the reasons for defendant's dissatisfaction with his attor-
ney and found them to be fairly nonspecific. To the extent that defendant identified
particular reasons for seeking new counsel, the trial court found that defendant
was dissatisfied with his counsel for reasons having to do with trial strategy and

Cite as 345 Or 551 	579
trial court erred because the circumstances that counsel
relied on in making their motions ''per se establishe[d] a
breakdown in the attorney-client relationship that is so
severe that counsel [could not] provide adequate assistance of
counsel." We review the trial court's rulings for abuse of dis-
cretion. See State u. Langley, 314 Or 247, 258, 839 P2d 692
(1992), adh'd to on recons, 318 Or 28, 861 P2d 1012 (1993)
(court reviews denial of a motion for substitution of counsel
for abuse of discretion).
Defendant has a constitutionally guaranteed right to
counsel under both Article I, section 11, of the Oregon
Constitution and under the Sixth Amendment to the United
States Constitution. 18 As we have observed, under both the
state and federal guarantees, "the defendant's right is not
just to a lawyer in name only, but to a lawyer who provides
adequate assistance." State u. Smith, 339 Or 515, 526, 123
P3d 261 (2005). Thus, both provisions secure for a defendant
"adequate performance by counsel of those functions of pro-
fessional assistance which an accused person relies upon
counsel to perform on his behalf." Krummacher v. Gierloff,
290 Or 867, 872, 627 P2d 458 (1981); see also Strickland u.
Washington, 466 US 668, 686, 104 S Ct 2052, 80 L Ed 2d 67 4
(1984) (Sixth Amendment right to counsel requires not just
counsel, but effective counsel). In Strickland, the Supreme
Court emphasized the underlying purpose of requiring effec-
tive (which this court refers to as "adequate") counsel:
"The benchmark for judging any claim of ineffectiveness
must be whether counsel's conduct so undermined the
counsel's frank assessment of the case against defendant and the strength of his
defense. Those findings, which are supported by the record, defeat defendant's
claim of error insofar as it is directed to the denial of his motions for substitute
counsel. See State v. Langley, 314 Or 247, 258, 839 P2d 692 (1992), adh'd to on
recons, 318 Or 28, 861 P2d 1012 (1993) ("A simple loss of confidence or disagree-
ment with counsel's approach to matters of strategy is not cause to substitute one
appointed lawyer for another."). We therefore reject defendant's assignments of
error in that regard without further discussion.
18 Article I, section 11, of the Oregon Constitution provides, in part:
"In all criminal prosecutions, the accused shall have the right to * * * be
heard by himself and counsel."
The Sixth Amendment to the United States Constitution provides, in part:
"In all criminal prosecutions, the accused shall enjoy the right * * * to have the
Assistance of Counsel for his defence."

580 	State v. Davis
proper functioning of the adversarial process that the trial
cannot be relied on as having produced a just result."
Id. Just as a defendant's motion for substitution implicates
the constitutional guarantees ofright to counsel, so too does a
defense counsel's motion for withdrawal. Thus, the touch-
stone of the inquiry here is the same as for a motion for
substitution-whether there has been a breakdown in the
attorney-client relationship sufficient to establish an abridge-
ment of the constitutional right to counsel. See Langley,
314 Or at 258 (articulating that constitutional standard for
testing a denial of a motion for substitution of counsel); see
also Schell u. Witek, 218 F3d 1017, 1026 (9th Cir 2000) (the
ultimate constitutional question in reviewing a denial of a
motion for substitute counsel is whether the conflict between
the defendant and counsel became so great that it resulted in
representation that fell below Sixth Amendment standards).
In this case, defense counsel first moved to withdraw
about two weeks before trial, just before jury selection. In
support of the motion, defense counsel represented to the
trial court that defendant was totally unwilling to cooperate
with any member of the defense team and that defendant's
family 	was 	similarly 	uncooperative. 	Defense 	counsel
expressed their concern that defendant's attitude had "seri-
ously disabled [their] ability to provide effective assistance of
counsel." In denying that first motion to withdraw, the trial
court found that defense counsel were fully prepared for trial
and were capable of adequately protecting defendant's inter-
ests. The court also found that defendant's lack of cooperation
with his attorneys was deliberate and stemmed from defen-
dant's unhappiness with defense counsel's frank assessment
of the unfavorable evidence against defendant, which defense
counsel had a duty to communicate to defendant.
A few weeks later, after the trial had begun, defense
counsel renewed their motion to withdraw. They reported
that defendant continued to disagree with counsel's decisions
as to strategy and witnesses, and that those disagreements
had resulted in "angry flare-ups" by defendant, including
defendant's use of"racial epithets" toward his counsel. Coun-
sel further represented that, in one conference with defen-
dant, at least one of defendant's counsel feared for his per-
sonal safety. Counsel told the trial court:

Cite as 345 Or 551 (2008) 	581
''Your Honor, I understand the Court's reluctance to
provide Mr. Davis with new counsel. However, I am stren-
uously requesting that the Court allow my withdrawal as
counsel. I am completely and totally professionally compro-
mised in terms of going any further for this man. He has
given cause for me to feel concern for my own safety, con-
cern for the safety of my co-counsel, concern for the negative
implications that all of this would present to a jury in a case
of this nature."
The trial court denied the second motion to with-
draw. In so ruling, the trial court did not question the sincer-
ity of counsel's concerns. Neither did the trial court doubt
that the relationship between defendant and his counsel was
strained. The trial court thought, however, that defendant
was deliberately manipulating the attorney-client relation-
ship in order to "throw a wrench in the trial simply where bad
evidence has been coming in." 19 In addition, the trial court
expressly found that defense counsel had been fully prepared
and professional in their representation and had zealously,
effectively, 	and 	professionally 	represented 	defendant
throughout the case. In other words, although the strain
between defendant and his counsel was real, that strain was
not 	undermining 	counsel's 	actual 	representation 	of
defendant.
On appeal, defendant does not take issue with the
trial court's findings. He argues, however, that defense coun-
sel's statement that they were afraid of defendant and felt
"professionally compromised" is evidence per se of a serious
breakdown in the attorney-client relationship, requiring the
trial court to allow counsel to withdraw. We decline to adopt
such a per se rule. The proper question to ask is whether,
19 The two attorneys who represented defendant during trial were not the first
attorneys appointed to represent him. Two other attorneys had previously been
appointed to represent defendant, and defendant had successfully moved for their
substitution based on an asserted breakdown in the attorney-client relationship. A
third attorney was then appointed, and defendant also successfully moved for sub-
stitution of that counsel. The two counsel who represented defendant as the trial
drew near, and who ultimately represented him through the trial proceedings,
were the fourth and fifth attorneys so appointed. In expressing concern that defen-
dant was deliberating undermining his relationship with his counsel, the trial
court expressed its belief that defendant was doing so in response to the "mounting
evidence against him."

582 	State v. Davis
given the 	circumstances involved, 	defense 	counsel 	ade-
quately performed "those functions of professional assistance
which an accused relies upon counsel to perform on his
behalf." Krummacher, 290 Or at 872. In this case, the trial
court found that defense counsel were fully adequate in their
representation of defendant, despite the strain that defen-
dant's hostility toward them created.
We note, moreover, that the trial court, in denying
the motions to withdraw, did not foreclose defense counsel
from again renewing their motions if, as the trial progressed,
they found it impossible to represent defendant effectively.
The issue did not arise again, however. The full record of the
trial is before us, and we have reviewed it in its entirety. We
have identified nothing on this record-and neither does
defendant point to anything-to suggest that defense coun-
sel's representation during the remainder of the trial became
deficient or was so compromised that counsel were unable to
represent defendant adequately. As we have said, we are
unwilling to endorse the per se rule that defendant urges.
Instead, the record affirmatively must reveal that counsel's
ability to represent their client was in fact compromised,
resulting in "an abridgment of a criminal defendant's consti-
tutional right to counsel." Langley, 314 Or at 258. The record
does not establish such an abridgment in this case. Conse-
quently, we conclude that the trial court did not abuse its dis-
cretion in denying counsel's motions to withdraw.
C. 	Prosecutor's Opening Statement
Next, we consider defendant's assertion that the
trial court erred in denying his motion for a mistrial based
on the prosecutor's description in his opening statement of
the 	expected testimony of a 	particular witness, Adonis
Thompson. As it happened, Thompson never testified at trial.
Defendant contends that the prosecutor's opening statement,
in which the prosecutor detailed anticipated testimony that
later was not admitted and subjected to cross-examination,
deprived him of a fair trial.
The legal standards that apply, for purposes of the
issue presented, are relatively settled. We review the trial

Cite as 345 Or 551 	583
court's denial of the motion for a mistrial for abuse of discre-
tion. Bowen, 340 Or at 508. Even if we conclude that a pros-
ecutor's conduct was improper, a trial court does not abuse its
discretion by denying a mistrial unless the effect of the pros-
ecutor's conduct was to deny a defendant a fair trial. Id. Gen-
erally, a proper jury instruction is adequate to cure any pre-
sumed prejudice from a prosecutor's misconduct. Id. To be
sure, however, statements or testimony that the jury is
instructed to disregard can be "so prejudicial that, as a prac-
tical matter, the bell once rung, cannot be unrung by such an
admonishment." State v. Jones, 279 Or 55, 62, 566 P2d 867
(1977) (internal quotation marks omitted). Ultimately, we
must decide whether, under the circumstances as a whole,
defendant was denied the right to a fair trial, as a matter of
law, by the events that transpired at trial. State v. Compton,
333 Or 274, 293, 39 P3d 833 (2002), cert den, 537 US 841,
reh'g den, 537 US 1068 (2002).
We begin our analysis by examining the totality of
circumstances that bear on whether the prosecutor's opening
statement deprived defendant of a fair trial. Before counsel
made their opening statements to the jury, the trial court
cautioned the jury that those statements were not evidence.
Specifically, the trial court stated:
"Folks, what we're going to do in just a moment is begin
the opening statements of the attorneys. Keep in mind the
opening statements are not evidence. The evidence is the
testimony of witnesses and the exhibits. Opening state-
ments are to give you a roadmap of what the attorneys
believe the evidence will be at trial."
The prosecutor then presented his opening statement. That
statement included descriptions of the anticipated testimony
of several witnesses whom the state planned to call, includ-
ing Adonis Thompson. With respect to Thompson, the prose-
cutor told the jury that he expected Thompson, who knew
defendant in prison, to testify that defendant had admitted to
committing the murders. Thompson was also expected to say
that defendant had complained to Thompson that another
prisoner, Teal, had "snitched" on him to police, and defendant
wanted Thompson to testify that Teal, who was ill, had made
up the story to get out of prison early. The prosecutor, while
holding a piece of paper in his hand, detailed for the jury the

State v. Davis
contents of a note that defendant allegedly had written to
Thompson:
"Adonis Thompson gave us the note. Here's what the note
says: 'Say, my brother, this is what I told my lawyers. I told
them that you was at OSCI with Ronald Teal and you were
walking around the track with him and he said he had that
shit and that he was dying and didn't want to die in the pen-
itentiary, so he was going to lie on me and get out. Because
he didn't want to die in the penitentiary. Thank you, my
brother.'"
After the parties gave their opening statements,
the prosecutor advised the trial court that he personally
had served Thompson with a subpoena to appear and that
the 	prosecutor had remained 	in continual contact with
Thompson's attorney, but that Thompson had not complied
with the subpoena. The prosecutor asked the court to issue a
contempt warrant. Defense counsel expressed concern that
the prosecutor had referred to Thompson in his opening
statement, despite the fact that Thompson's statements were
unknown. The trial court asked the prosecutor for his "good
faith basis [to believe that] you're going to be bringing him in
quickly." The prosecutor explained that he remained optimis-
tic that Thompson would appear, based on his conversations
with Thompson's 	attorney and 	with a 	close relative of
Thompson's, as well as a voice message that Thompson had
left on the prosecutor's answering machine. The prosecutor
thought that Thompson just needed an extra couple of days
and would be in the area the next day. Defense counsel made
no formal motion to the court at that time.
The trial proceeded. Thompson never appeared, and
so he never testified. After both sides rested and the case was
submitted to the jury, defendant moved for a mistrial. Defen-
dant argued that Thompson's testimony was improperly
placed before the jury during prosecutor's opening state-
ments and that defendant was prejudiced by it. In response,
the prosecutor asserted that he had had a good faith belief
that Thompson would testify, based on the events as they had
unfolded up to the time of opening statements. In particular,
the prosecutor represented to the trial court that the prose-
cutor had met with Thompson and his attorney about a week
before trial began. At that time, Thompson was in custody on

Cite as 345 Or 551 (2008) 	585
an unrelated matter and had signed a formal cooperation
agreement with the prosecution. Thompson, who assured the
prosecutor that he would appear for trial, risked going to
prison if he violated that agreement. The prosecutor further
told the trial court that, as the trial date approached, the
prosecutor attempted to contact Thompson, without success.
Just before opening statements, however, Thompson's attor-
ney phoned the prosecutor and informed him that Thompson
would contact the prosecutor the day after opening state-
ments. The prosecutor relied on that representation in mak-
ing his opening statement. When Thompson did not appear
as expected, the prosecutor enlisted the help of investigators,
who staked out his last known residence and his girlfriend's
residence. At some point, police learned that Thompson may
have gone to Las Vegas. The prosecutor contacted the Las
Vegas Police Department to request that they notify him if
they learned Thompson's whereabouts. As to the defendant's
concern about the note, the prosecutor explained that he had
not been in possession of the note, but instead incorporated
its contents in his opening statement based on his recollec-
tion of what it had stated. At the court's request, the prose-
cutor affirmed under oath that everything that he had stated
to the court regarding his efforts to secure Thompson's testi-
mony was true.
In his response to the prosecutor's statement, defen-
dant did not take issue with or otherwise challenge the pros-
ecutor's good faith. Defendant continued to argue, however,
that 	the 	opening 	statement's 	reference 	to 	Thompson's
expected testimony, including the alleged note from defen-
dant, was highly prejudicial. Defendant stated that he was
"not asking for a curative instruction, because that's going to
double ring the bell."
The trial court denied defendant's motion for a mis-
trial. In so ruling, the court made two findings as to the pros-
ecutor's good faith: (1) the prosecutor had a good faith belief
that he had secured Thompson's appearance when he pre-
sented the opening statement; and (2) the prosecutor made a
good faith effort to locate Thompson following his failure to
appear pursuant to the subpoena. As to whether the prose-
cutor's opening statement prejudiced defendant, the court

586 	State v. Davis
noted that at least seven witnesses had given testimony sim-
ilar to what Thompson would have offered, all concerning
statements that defendant allegedly had made regarding his
involvement in the murders. The trial court offered defen-
dant the opportunity for the following curative instruction:
"My thought was simply to tell the jury that any statements
made in opening regarding the testimony of Mr. Adonis
Thompson are to be accepted as not true and they're to dis-
regard any reference to him because he was not a witness in
this case."
Defendant 	declined 	that 	curative 	instruction, 	choosing
instead to address the matter in closing argument:
"You heard on opening statement by [the prosecutor] that
there was yet another witness here, another witness going
to come in here and tell you [defendant] did it. And, in fact,
he wrote a letter. [Defendant] wrote a letter to him, and
he read the letter to you. The guy's name was Adonis
Thompson. Have you seen an Adonis Thompson? Have you
seen a letter introduced into evidence here?"
On appeal, defendant argues that the prosecutor's
statements concerning Thompson's expected testimony were
unduly prejudicial because those statements added weight to
the state's case that was not subject to cross-examination and
thus denied defendant a fair trial. 20 In support of his argu-
ment, defendant principally relies on Frazier u. Cupp, 394 US
731, 89 S Ct 1420, 22 L Ed 2d 684 (1969). In Frazier, the pros-
ecutor in opening statements summarized the expected tes-
timony of Rawls, a codefendant. Id. at 733. As the Supreme
Court described the prosecutor's remarks, the summary of
Rawls's testimony was not emphasized, took only a few
minutes, and was sandwiched in between a description of
other evidence. Id. The prosecutor also referred to a piece of
paper that he was holding to refresh his recollection about
something Rawls had stated, which, the prosecutor later
acknowledged, the jury might have believed was a written
20 In contrast to defendant's statements to the trial court, defendant now also
contends that the prosecutor acted intentionally and in bad faith because the pros-
ecutor had been aware that Thompson might not appear for trial. Defendant's
argument regarding the prosecutor's alleged bad faith is not preserved, and we do
not consider it. See State u. Wyatt, 331 Or 335, 341-47, 15 P3d 22 (2000) (court
declined to consider issue not preserved in the trial court).

Cite as 345 Or 551 (2008) 	587
statement by Rawls. Id. at 734. The defendant unsuccessfully
moved for a mistrial at the end of opening statements
(evidently because the defense knew that Rawls likely would
not testify). Id. When the prosecutor called Rawls to the
stand during trial, Rawls asserted his privilege against self-
incrimination. Id. The defendant renewed his motion for a
mistrial, and the trial court again denied it. Id.
In a habeas proceeding before the Supreme Court,
the defendant argued that the prosecutor's opening state-
ment concerning Rawls's testimony added weight to the
state's case in a form not subject to cross-examination, thus
violating his constitutional right of confrontation. Id. The
Supreme Court disagreed. Id. at 735. The Court emphasized
that the alleged impropriety occurred during opening state-
ments and that the jury was told that the opening statements
are not to be considered evidence. Id. The Court also noted
that Rawls's statement was not a "vitally important part of
the prosecution's case." Id. The Court explained:
"It may be that some remarks included in an opening or
closing statement could be so prejudicial that a finding of
error, or even constitutional error, would be unavoidable.
But here we have no more than an objective summary of
evidence which the prosecutor reasonably expected to pro-
duce. 	* * * Certainly not every variance between the
advance description and the actual presentation consti-
tutes reversible error, when a proper limiting instruction
has been given."
Id. at 736.
In this case, defendant attempts to rely on Frazier by
distinguishing it. Specifically, defendant asserts that the
prosecutor's 	statement 	here 	was 	far 	more 	prejudicial,
because the prosecutor detailed Thompson's testimony and
appeared to read from the alleged note from defendant. We
disagree that the differences in the two cases are appreciable
enough to dictate a difference in outcome.
The most important factor in the Supreme Court's
decision in Frazier was that the statements were part of the
prosecutor's opening statements and not part of an eviden-
tiary phase of the trial. The Court emphasized that opening
statements pose less danger to a defendant's right to a fair

588 	State v. Davis
trial than when inadmissible evidence is placed before the
jury during trial because "the jury will ordinarily be able to
limit its consideration to the evidence introduced during the
trial." Id. at 736. 21 The Court did not foreclose the possibility
that remarks in an opening statement could be "so prejudi-
cial" as to require a finding of constitutional error. Id. at 736.
As the Court acknowledged, "[m]any things might happen
during the course of the trial which would prevent the pres-
entation of all the evidence described in advance." Id. It
therefore was unwilling to declare that "every variance
between the advance description and the actual presentation
constitutes reversible error, when a proper limiting instruc-
tion has been given." Id. In particular, the Court was unwill-
ing to do so when the objectionable reference was part of the
prosecutor's "objective summary of evidence which the pros-
ecutor reasonably expected to produce" and nothing more. Id.
Here, 	as was 	true 	in Frazier, 	the reference 	to
Thompson's 	testimony 	occurred 	during 	the 	prosecutor's
"objective summary" during opening statements about the
evidence that the prosecutor expected to produce. Also as in
Frazier, the prosecutor's statements describing Thompson's
expected testimony were included among descriptions of the
expected testimony of several other witnesses; no special
emphasis was placed on Thompson's expected testimony or
its value in establishing defendant's guilt. Just as the trial
court in Frazier gave the jury an instruction about the pur-
pose of opening statements, id. at 735, so, too, did the trial
court in this case advise the jury that opening statements
were not evidence. Finally, this case involves something that
21 For that reason, this case differs from State v. Jones, 279 Or 55, 566 P2d 867
(1977), where this court held that the defendant was denied a fair trial based on the
prosecutor's examination of two witnesses during a rape trial. In Jones, the prose-
cutor elicited testimony from two witnesses that the defendant had committed rape
"many times" before. Id. at 61-62. The trial court instructed the jury to disregard
those statements and denied the defendant's motion for a mistrial. Id. at 62. Later
during the trial, the prosecutor offered evidence of the defendant's criminal record;
no record was offered of any prior conviction for rape or any sex offense. Id. In
reversing the conviction, this court explained that the prosecutor persisted in
insinuating that defendant had previously committed rape, knowing that he had
no proof of prior rape convictions. Id. at 63. In such a case, this court held, the prej-
udice was so pervasive that the defendant was denied a fair trial. Id. The curative
instruction did not suffice, because the testimony was so prejudicial that, "as a
practical matter, the bell once rung, cannot be unrung by such an instruction." Id.
at 62 (internal quotation marks omitted).

Cite as 345 Or 551 (2008) 	589
Frazier did not. Specifically, the trial court in this case
offered to give a curative instruction that would have been
tailored to the statements about Thompson's testimony, one
that would have gone so far as to tell the jury to assume that
the statements were not true. 	Defendant declined that
instruction. 22
On balance, we conclude that the prosecutor's sum-
mary of Thompson's expected testimony cannot be said to
have so prejudiced defendant as to have denied him a fair
trial. The trial court therefore did not abuse its discretion by
denying defendant's motion for a mistrial.
D. 	Exclusion of Detective Hill's "9-1-1" Report
The final assignment of error that we address is
defendant's claim that the trial court erred in sustaining the
state's objection to hearsay testimony concerning Detective
Hill's written police report about the contents of the missing
recording of the Gattermeir 9-1-1 calls. On appeal, defendant
claims that the trial court erred by sustaining that objection,
because his inability to examine Norman about Hill's written
report deprived him of an opportunity to present a complete
defense and therefore violated his right to due process. See
Holmes v. South Carolina, 547 US 319, 320, 126 S Ct 1727,
164 L Ed 2d 503 (2006) (trial court's authority to exclude evi-
dence is limited by the constitutional guarantee that a crim-
inal defendant have "a meaningful opportunity to present a
complete defense" (quoting Crane v. Kentucky, 476 US 683,
690, 106 S Ct 2142, 90 L Ed 2d 636 (1986) (internal quotation
marks omitted))).
As 	we 	noted 	earlier, 	Detective 	Hill, 	who 	was
deceased by the time of trial, had written a report about her
interview with Olivia Gattermeir concerning the substance
of her 9-1-1 call. That report was mentioned by the trial court
during the pretrial hearing on defendant's motion to dismiss
for preindictment delay, in relation to the court's conclusion
that defendant was not prejudiced by the loss of the 9-1-1
recording. The trial court also mentioned defendant's own
22 The Supreme Court in Frazier noted that a "more specific limiting instruc-
tion might have been desirable" in addition to the general pretrial instruction that
opening statements are not evidence, "but none was requested." 394 US at 735
(unnumbered footnote). Here, one was offered but declined.

590 	State v. Davis
recorded 2003 interview with the Gattermeirs as substitute
evidence for the 9-1-1 recording.
At trial, however, defendant did not rely on his own
interviews of the Gattermeirs; neither did he seek to have
Detective 	Hill's 	written 	report 	admitted 	into 	evidence.
Instead, on cross-examination of retired Detective Norman,
defendant 	asked 	Norman 	to 	answer 	certain 	questions
designed to reveal the contents of Detective Hill's written
report. Specifically, defense counsel asked Norman to read to
himself a paragraph from Hill's written report, in which Hill
had described Olivia Gattermeir's explanation of the sounds
she heard coming from Room 24 on the night of the murders,
and then asked Norman whether he "had reason to believe
that sounds had been reported to 9-1-1 which sounded like
pops[.]" The state objected on the ground that the question
called for hearsay, and the trial court recessed the proceed-
ings to discuss the matter outside the presence of the jury.
After a conference in chambers, the court instructed
the jury to ignore any references during Norman's cross-
examination to "pop" sounds:
"THE COURT: 	Folks, we are going to take a break at
this point. There has been talk about a 911 tape. Any sub-
stance of that tape is not in evidence yet. Statements
regarding pops I'm going to ask you to disregard at this
time. The attorneys and I will have a further discussion
about that. And questions will be formulated based on a dis-
cussion we'll have outside of your presence on the issue of
that 911 tape. So for this evening, we're going to take a
break."
The next day, the trial court and the parties resumed
their discussion of the issue, and the trial court asked the
parties how they wanted to handle the matter. The state
renewed its hearsay objection, but argued further that, if the
court was inclined to allow in any information about the
contents of Hill's written report about his interview of
Olivia Gattemeir, then the court should admit the "entire
context" of the interview. To that end, defendant proposed
that Detective Norman be allowed to read paragraphs 2 and
3 of a certain page from Hill's report into the record, which, in
defendant's view, would provide the "full content" of the

Cite as 345 Or 551 (2008) 	591
report. The prosecutor responded, however, that the para-
graphs that defendant suggested "would take the matter out
of context" and suggested, again, that if the court was going
to allow the information in, it was appropriate to have the
"entire context" of the conversation put into evidence:
"And here's what I mean by that. To put in paragraphs 2
and 3 only would leave this listener, the jury, with an
impression, if not an understanding, that the call, which we
do agree was made at 2:55 a.m., the information would be
then that the pop, pop or whatever sounds they were and
they're described as pop, would have occurred in that gen-
eral time frame, in the 2:55 time frame.
"That is not the entire context of the conversation that's
had with [Olivia] Gattermeir, because the preceding para-
graph enlightens us as to when she and her husband did
hear that pop, pop. And how it's described is that she says-
and I'm going to summarize, and I think I can fairly sum-
marize. But she says she and her husband went to dinner
on November 2nd at between 8 and 10 p.m., 8 and 10 p.m.
on the 2nd. Upon their return from dinner, Mr. Gattermeir
was preparing to take a shower. And that period of time
then is 30 to 45 minutes after their return from dinner.
"That's when they heard the pop, pop. So in the context
of what is said in its entirety, the pop, pop is heard in that
8 to 10 general time period on the 2nd, as opposed to 2:55
a.m. on the 3rd, two completely different things.
"And so the State, again, we have a general objection to
hearsay, but ifthe Court's going to overrule and allow this
information in, it should come in in its entirety, not in part."
The trial court ruled that it would not admit any
selective portions of the report or testimony about selective
portions of the report, given the state's objection and the fact
that the information "does appear * * * to be hearsay." The
court observed that defendant had not identified any excep-
tion to the hearsay rule that applied. The trial court never-
theless offered defendant the opportunity to argue that "due
process requires somehow this evidence comes in." Defen-
dant responded that he was not prepared to make that argu-
ment, but asked
"to reserve further argument on that, whether this comes
under the residual clause of the hearsay exception, whether

592 	Davis
due process requires its allowance of its introduction due to
the unavailability of [Detective Hill] and the apparent loss
of the evidence.
"So if I could reserve argument on that, I think we
could-we could just move on at this point."
The court concluded by reiterating that it would sustain the
state's hearsay objection, but that defendant could raise the
issue again later in the trial if defendant so chose. Defendant
did not renew his effort to introduce either Norman's testi-
mony on the subject or the contents of Hill's report.
Now, defendant argues that the trial court's pretrial
ruling-i.e., that he did not suffer undue prejudice by the loss
of the 9-1-1 recording-and the trial court's subsequent mid-
trial evidentiary ruling-i.e., that defendant could not elicit
Norman's description of Hill's written report, or have selec-
tive portions of that report admitted into evidence-were
contradictory. Defendant contends that the net effect of the
two rulings was to "deprive defendant of his only complete
defense" and thus violated due process. Despite the trial
court's invitation to do so, however, defendant did not raise
a due process argument for the trial court to address or
decide. 	Defendant's constitutional argument is therefore
unpreserved.
Even if defendant's hearsay objection encompassed a
due process objection, the trial court did not err. Defendant's
claim that he was deprived of his "only complete defense"
rests on his assertion that, in the absence of the actual 9-1-1
recording, Hill's written report provided him with his only
means of proving that Flannigan's death may have occurred
at a time when he had an alibi. The predicate for defendant's
claim is flawed, however. Hill's written report was not defen-
dant's only means of seeking to establish when the Gatter-
meirs heard the "pop, pop" sounds. Defendant's investigator
had contacted and interviewed the Gattermeirs by phone,
they could recall the events in question, and they apparently
were available as witnesses. Defendant did not, however,
seek to use his own investigation in any way.
More fundamentally, however, defendant was not
entitled to insist on presenting only selective portions of the

Cite as 345 Or 551 (2008) 	593
report. When defendant sought to ask Norman about isolated
statements in the report, and when the state objected that
doing so deprived the statements of their context, defendant
offered to introduce only two selected paragraphs in the
report. Defendant was unwilling to include other portions
that provided added context for the Gattermeirs' explanation
of what they heard and when they had heard it. Even assum-
ing that defendant had a due process right to examine
Norman about the report, or to introduce the report itself
because the 9-1-1 recording had been lost, defendant was not
entitled to do so selectively and to preclude the admission of
other equally relevant portions of the report. Under the cir-
cumstances, the trial court did not err in its evidentiary
ruling.
III. 	CONCLUSION
For the reasons set out above, we reject defendant's
arguments. We therefore affirm defendant's convictions and
the sentence of death.
The judgment of conviction and sentence of death
are affirmed.
WALTERS, J., concurring.
I concur in the court's decision to affirm defendant's
conviction and, with respect to each assignment of error that
the court discusses, I concur with its reasoning. Although I
also concur in the court's decision to affirm defendant's sen-
tence of death, I must explain more fully.
Defendant raises many arguments as to the con-
stitutionality of the death penalty that this court previously
has rejected. I did not participate in those decisions, and
although I reserve my right to reconsider some or all of them,
I feel constrained, at least in this case, by the doctrine of stare
decisis. That doctrine requires the balancing of the "undeni-
able importance of stability in legal rules and decisions" with
the "important need to be able to correct past errors."
Stranahan v. Fred Meyer Inc., 331 Or 38, 53, 11 P3d 228
(2000).
Recently, jurists who had voted many times to affirm
sentences of death have reassessed the constitutionality of

594 	State v. Davis
the death penalty in light of their experiences with its admin-
istration and objective evidence of the evolving standards of
decency. See Baze v. Rees, __ US __ , 128 S Ct 1520, 1551,
170 L Ed 2d 420 (2008) (Stevens, J., concurring) (stating that,
in his experience, "the death penalty represents the pointless
and needless extinction of life with only marginal contribu-
tions to any discernible social or public purposes[]" (citation
omitted)); Doss v. State, __ So 2d __ , __ , 2008 WL
5174209, *15-16 (Miss 2008) (Diaz, J., dissenting) (drawing
upon judicial and state experience to conclude that despite
efforts to limit arbitrary or disproportionate sentences, state
system "does not answer Eighth Amendment concerns-it
exacerbates them").
This court also has emphasized that the pull of prec-
edent "'is strong, but it is not inexorable.'" Stranahan, 331
Or at 53 (quoting Hungerford v. Portland Sanitarium, 235 Or
412, 415, 384 P2d 1009 (1963)). The degree to which any
opinion binds future tribunals "depends, of necessity, on
[that opinion's] agreement with the spirit of the times or the
judgment of subsequent tribunals upon its correctness as a
statement of the existing or actual law." Id. at 54 (internal
quotation marks, citations, and emphasis omitted).
The strength of the bond of an earlier ruling is
directly proportionate to the moral and intellectual authority
that continues to inform our understanding of that earlier
holding. When presented with the opportunity to do so, I urge
this court to consider our state's experience in imposing the
death penalty and to examine its constitutionality anew.

3 printed pages contain little extracted OCR body text; searchable legal-body completeness has not been established for those pages.

OCR transcription for search; preserved printed pages are authoritative

Argued and submitted November 6, 2007, judgment of conviction and sentence of
death affirmed December 31, 2008

STATE OF OREGON,
Respondent,
v.
MICHAEL ANDRE DAVIS,
Appellant.

(CC 020633788; SC S053071)
201 P3d 185

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CJS, Constitutional Law § 1016.

# En Banc

On automatic and direct review of the judgment of convic-
tion and sentence of death imposed by the Multnomah
County Circuit Court.

Michael McShane, Judge.

Robin A. Jones, Senior Deputy Public Defender, Salem,
argued the cause for appellant. With her on the briefs were
Ingrid Swenson, Executive Director, Peter Gartlan, Chief
Defender, and Meredith Allen, Deputy Public Defender,
Office of Public Defense Services.

David B. Thompson, Assistant Attorney General, Salem,
argued the cause for respondent. With him on the brief were
Hardy Myers, Attorney General, Mary H. Williams, Solicitor

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General, and David B. Thompson, Kaye McDonald, Timothy
A. Sylwester, and Heather Vogelsong, Assistant Attorneys
General.

LINDER, J.

The judgment of conviction and sentence of death are
affirmed.

Walters, J., concurred and filed an opinion.

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# LINDER, J.

On November 3, 1991, Gerald Phillips and Belinda
Flannigan were found dead in Room 24 at the Ara'Bel Motel
in Portland. Detectives investigated the case for several
weeks after the murders, and again in 1996, but came up
with no solid leads until 2002. Following its investigation of
the case in 2002, the state charged Michael Andre Davis
(defendant) and Edgar Lee Foreman with several counts of
aggravated murder for the deaths of Phillips and Flannigan.1
Before trial, defendant and Foreman unsuccessfully moved
to dismiss the charges on the ground of preindictment delay.
The cases were severed for trial, and the charges against
Foreman were dismissed without prejudice. The case contin-
ued against defendant and, on October 28, 2005, a jury found
him guilty of all counts. After a penalty-phase proceeding,
the trial court sentenced defendant to death.

The case is now before this court on automatic and
direct review of defendant's judgment of conviction and sen-
tence of death. ORS 138.012(1). Defendant raises 14 assign-
ments of error, which he organizes into four categories:
(1) pretrial issues; (2) issues raised during trial; (3) constitu-
tionality of Senate Bill (SB) 936 (1997); and (4) constitution-
ality of Oregon's death-penalty scheme. In our view, four of
defendant's assignments of error merit discussion: (1) defen-
dant's assertion that the trial court erred in denying defen-
dant's motion to dismiss for preindictment delay; (2) defen-
dant's assertion that the trial court erred in denying defense
counsel's motions to withdraw; (3) defendant's assertion that
the trial court erred in denying defendant's motion for a mis-
trial based on the prosecutor's reference in his opening state-
ment to the testimony of a witness who failed to appear at
trial; and (4) defendant's assertion that the trial court erred

' The state originally indicted defendant and Foreman on July 16, 2002; due to
further developments in the case, that indictment was dismissed. On November 8,
2002, defendant and Foreman collectively were reindicted on eight counts of aggra-
vated murder with a firearm and four counts of aggravated felony murder with a
firearm, and Foreman individually was indicted on two additional counts of felony
murder. For purposes of this review, the operative pleading is the subsequent
indictment of defendant for those first 12 counts.

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in refusing to admit evidence of the contents of a police
report.2 For the reasons set forth below, we reject defendant's
claims of error and, therefore, affirm his convictions and sen-
tence of death.

## I. FACTS AND PROCEDURAL BACKGROUND

We view the evidence in the light most favorable to
the state, because the jury found defendant guilty. See State
v. Bowen, 340 Or 487, 489, 135 P3d 272 (2006), cert den,
549 US 1214 (2007) (stating that standard). On Sunday,
November 3, 1991, the manager of the Ara'Bel Motel noticed
that the door to Room 24 was open. That room was registered
to Belinda Flannigan. The manager looked inside and saw a
bloodied man against the wall. The manager immediately
called the police. Upon entering the room, the police found
the bodies of Gerald Phillips and Belinda Flannigan.

Detective Hill served as the lead detective on the
case, and Detectives Norman and Yamasaki joined her.
Detectives and criminalists photographed and videotaped
the scene extensively. Inside the room, investigators found
four .45 caliber shell casings, all of which had been fired from
the same pistol, and three spent bullets. (The fourth spent
bullet was later found in Phillips's body.) Investigators also
found several personal items and recently purchased food
products, but they found no useful fingerprints in the room.
Police also tested a gold Mercedes Benz parked in front of
Room 24, which belonged to Phillips's wife, for fingerprints,
but came up with nothing useful. Detective Hill interviewed
the resident of Room 21, who reported that she had heard a
loud noise that sounded like a gunshot sometime after
10:00 p.m. the night before, but could not pinpoint the exact
time.

Based on the state of the bodies when the medical
examiner's investigator arrived at the scene, the medical
examiner placed the time of death between 8:20 p.m. and

2 We have considered each of defendant's other assignments of error and each
of his supporting arguments. Those other assignments of error either have been
discussed by this court in previous cases and resolved against defendant, were not
preserved for review, or are not well taken. Further discussion of the issues would
not benefit defendant, the public, the bench, or the bar.

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10:20 p.m. on November 2, 1991. The medical examiner
performed autopsies on both Phillips and Flannigan on
November 4. Based on the partially digested food in Phillips's
stomach, combined with information concerning the time
that Phillips last had eaten, the medical examiner concluded
that Phillips had died between 8:20 p.m. and 10:20 p.m. on
November 2. The medical examiner was unable to use the
undigested food in Flannigan's stomach to assess her time of
death, because the medical examiner had no information
about when she last had eaten.

According to the record of outgoing telephone calls
from the Ara'Bel Motel, the occupants of Room 23 made two
9-1-1 calls in the early morning hours of November 3, 1991.
The first had occurred at 2:55 a.m. and the second had
occurred at 2:58 a.m. Olivia and Paul Gattermeir were reg-
istered to Room 23, and each of them had called 9-1-1 to
report "pops" that sounded like gunfire coming from the room
next door. Detective Hill obtained a tape recording of the
9-1-1 calls and later interviewed Olivia about her call. Hill
memorialized the content of that interview in a written
report on November 7, 1991. That report recounts that Olivia
told Hill that she and Paul had come back from dinner
between 8:00 p.m. and 10:00 p.m. on November 2 and that
they had heard loud "pops" approximately 30 to 45 minutes
after they returned from dinner, well before the first 9-1-1
call was placed. The recording of the 9-1-1 calls was missing
at the time that defendant was indicted and never has been
recovered.

Detective Hill interviewed defendant shortly after
the murders and learned that he had met Flannigan some-
time in October 1991 at the Five Spot Tavern (Five Spot),
where she worked. At the time, defendant had been living
with Foreman. Defendant and Flannigan began dating, and
they eventually both moved into the apartment of Eddie
Bynum, one of defendant's associates. According to defen-
dant, six days before Flannigan's murder, Flannigan did not
return to the apartment at the end of her shift.3 Defendant
later learned that Flannigan had resumed her relationship

3 Registration records from the Ara'Bel Motel show that Flannigan checked
into Room 24 on October 30, 1991, three days before her murder.

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with her ex-boyfriend, Phillips. Flannigan returned to
Bynum's apartment three days later to retrieve her clothing.
Defendant, who was at the apartment when Flannigan
returned, told her that she could get her clothes when she
repaid $500 that she owed him. They argued about the debt,
and Flannigan left on foot without her clothing.

According to defendant's interview with Hill, on the
morning following the argument, Flannigan had called
defendant at Bynum's apartment and informed him that she
needed her clothing. She arrived at the apartment early that
afternoon in a Toyota that, according to defendant, she said
Phillips had bought for her. Defendant said that they talked
for a little while, that Flannigan retrieved some of her cloth-
ing, and that she then left for work. Later that night, defen-
dant went to the Five Spot to speak with Flannigan again.

Defendant further told Hill that Flannigan had
called him at about 4:00 a.m. on November 2, 1991, (the day
of the murders) and that he and Flannigan had spoken for
approximately three hours. Between noon and 1:00 p.m. that
day, Flannigan went to see defendant at Bynum's apartment.
They apparently drove to a park, but Flannigan's car broke
down. Flannigan had to get to work that evening, so they
called Bynum and asked him for a ride. Bynum picked them
up and dropped Flannigan off at the Ara'Bel Motel.

Defendant told Hill that he and Bynum had planned
that night to go to a friend's house to watch a local profes-
sional basketball game on television, but that he decided to
go home instead. Bynum dropped him off at their apartment
between 6:30 p.m. and 6:45 p.m. Defendant said that Bynum
had called him at the apartment during halftime, between
8:00 p.m. and 8:30 p.m., to tell him that he wasn't missing
anything because the cable TV connection had gone out.
Defendant said that, between 10:00 p.m. and 10:30 p.m., he
drove one of Bynum's cars to a Safeway store, bought beer
and a pack of cigarettes, and returned to the apartment.
When defendant returned, Bynum was there. A short time
later, Foreman arrived at the apartment with a friend.
Foreman, his friend, and defendant then went to the
New York Diner, a nightclub. According to defendant, they
remained there until closing, which was about 2:30 a.m. They

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then tried to eat at a Lyon's restaurant and then at a Denny's
restaurant, but the restaurants were too crowded. According
to defendant, he returned to Bynum's apartment between
3:00 a.m. and 4:00 a.m. on November 3.

Bynum's statements to Hill were consistent with
defendant's statements. He confirmed that he and defendant
had dropped Flannigan off at the Ara'Bel Motel between
6:00 p.m. and 6:30 p.m. on November 2. Bynum also con-
firmed that he had telephoned defendant at the apartment
during halftime of the basketball game, which was sometime
between 8:00 p.m. and 8:30 p.m. Bynum further stated that,
when he returned home between 10:15 p.m. and 10:30 p.m.,
defendant was not at the apartment and had taken one of
Bynum's cars without permission. Bynum called Foreman to
ask about defendant's whereabouts, but, as he did, defendant
walked in carrying a 40-ounce bottle of beer.

Detective Hill interviewed Foreman on November 6,
1991. Foreman stated that, on November 2, 1991, he and two
friends-Josh Lowery and Erik Payne-had planned to go to
the basketball game at halftime and watch it in the arena.
Foreman told Hill that, when they could not get into the
game, they went to the Five Spot between 9:00 p.m. and
9:15 p.m., where Flannigan was dancing. Foreman and his
friends left the Five Spot soon after Flannigan finished her
shift, around 9:30 p.m. and 9:45 p.m., and went to a Safeway
store and then to a 7-Eleven store. After that, they dropped
Payne off at the University of Portland, went to a
McDonald's, and then went to Bynum's apartment sometime
between 10:30 p.m. and 11:30 p.m. to pick up defendant.
Foreman stated that the group, including defendant, then
went to the New York Diner and remained there until it
closed at about 2:30 a.m. Foreman told Hill that, after leav-
ing the New York Diner, they attempted to eat at Lyon's and
then at Denny's, but the restaurants were too crowded.
Foreman stated that they took defendant back to Bynum's
apartment between 4:00 a.m. and 4:30 a.m. on November 3,
1991.

Following up on Foreman's story, Detective Hill
interviewed Lowery on November 8, 1991. Lowery's descrip-
tion of events was consistent with Foreman's description,

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including that they had picked up defendant at Bynum's
apartment between 10:30 p.m. and 11:00 p.m. on November 2
and that they were with him until they dropped him off at the
apartment at around 4:00 a.m. on November 3. On several
occasions, Detective Hill attempted to contact Payne for an
interview, but could not locate him.

On November 12, 1991, Detective Norman inter-
viewed Gary Cline, a regular patron of the Five Spot, who
knew defendant and Flannigan. Cline informed Norman
that, on the evening of October 31, 1991, two days before
Flannigan's death, he had seen defendant and Flannigan
arguing in the parking lot. During that argument, Flannigan
told defendant that she did not want to see him anymore and
that she did not want him to visit her at the Five Spot.
According to Cline, defendant was visibly upset after hearing
that information. Cline walked up to the couple, but defen-
dant told Cline to go back inside and said that he would talk
to him later. Cline went back inside.

Cline informed Norman that he knew that defen-
dant and Flannigan had been arguing during the prior week,
that Flannigan was breaking off her relationship with defen-
dant, and that Flannigan had told a bartender that she did
not want defendant at the Five Spot anymore. Cline had also
heard that Flannigan was breaking up with defendant to get
back together with her old boyfriend, Phillips. Cline further
informed Norman that, after defendant had argued with
Flannigan, he was "moping around" over Flannigan ending
their relationship. Cline told defendant that dancers like
Flannigan were not worth it and to not worry about it any-
more. Cline told Norman that he had said to defendant,
"Come out here, I'm gonna beat your ass if you don't wise up."
Cline then started to walk out the door and defendant fol-
lowed. As they continued outside, Cline heard defendant
slide the hammer back on a pistol and then ask, "You know
what that is?" Cline replied that it sounded like a .45 caliber
pistol. "You're right," defendant confirmed. When they got
just outside the door and into the parking lot, defendant
showed the pistol to Cline, who then said, "It's a good thing it
isn't loaded." Defendant ejected a cartridge out of the
weapon, which landed on the ground near the door, and said,
"Well, it is." Cline replied, "It's a good thing we're friends."

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Defendant then tucked the gun into his belt behind his back,
and he and Cline went back inside.4 Cline told Norman that
he knew that defendant's pistol was a .45 caliber because he
had spent time in the military where he had seen .45 caliber
automatic pistols.

Based largely on Cline's statements, Norman
obtained a warrant to search defendant's person, Foreman's
residence (where defendant then resided)5 and Foreman's
SUV, the vehicle in which Foreman generally drove defen-
dant around. On November 25, 1991, Norman and seven
other officers spent an hour and a half searching those three
areas for a .45 caliber weapon, associated ammunition, and
other items. The search was unsuccessful, however, and the
officers did not seize any evidence.

The investigation of the case stalled. Then, in late
1996, a person named Sammy Grihm, who apparently was
facing unrelated criminal charges, disclosed information to
police about defendant's involvement in the murders.6 Grihm
had been staying in Portland with his sister, Tina Spann,
who was in a sporadic relationship with defendant and had
lived with him for several years in the mid-1990s. Grihm told
detectives that he had overheard two conversations in which
defendant and Spann talked about Flannigan and Phillips,
and that defendant had admitted killing them.

Specifically, according to Grihm, in the first conver-
sation, Spann had said to defendant something to the effect
of, "I know you killed those two people," and defendant
replied "yeah," confirming that he had. Grihm further
reported that defendant had said that the two victims just

4 According to Cline, defendant did not pick up the cartridge after their
exchange in the parking lot of the Five Spot. At the pretrial hearing on defendant's
motion to dismiss for preindictment delay, Norman testified that he did not go to
the tavern to look for it after interviewing Cline during the investigation of the case
in November 1991. Norman admitted that the cartridge would have been a proba-
tive piece of evidence, especially if its numbers, manufacturer, and ejection pattern
matched those of the casings found in Room 24.

" In a subsequent conversation with Detective Hill on November 11, 1991,
Bynum likewise told Hill that defendant, after breaking up with Flannigan, had
moved out of Bynum's apartment and back in with Foreman.

6 In 1996, Detective Hill was killed in a plane crash while on vacation. Other
detectives therefore took over the investigation.

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had returned from the store and that Flannigan had wine
and food "all laid out." Defendant also said that, initially, he
was not going to shoot "the punk," referring to Phillips, but
when Phillips came at him, defendant shot him. Defendant
said that he then slapped Flannigan and, afterwards, shot
her twice in the head. Grihm told the detectives that he later
spoke with Spann about defendant's statements and that she
confirmed that defendant had killed two people. She told
Grihm that the murders had taken place at the Courtesy
Inn.7

The second conversation, in which Grihm had heard
defendant admit to killing Flannigan, was shorter. Grihm
heard defendant order Spann to come into the bedroom, and
Spann replied something to the effect of, "I better, or you'll
kill me like you did that bitch." Defendant replied: "Yeah, I
shot that bitch two times, I ain't going to lie, yeah, I did it, I
did it, period[.]"

After Grihm related those conversations to the
detectives, the detectives interviewed Spann. Spann did not
back up Grihm's statements. Spann agreed to a polygraph
examination, but the results were inconclusive. Ultimately,
the detectives were unsure who to believe, but they suspected
that Grihm was not being truthful and was embellishing.

At that point, the investigation of the case stalled
again. The next break in the case did not come until April
2002. At that time, detectives learned from an inmate in the
Oregon State Penitentiary that defendant had admitted to
another inmate, Ronald Teal, that he had killed Flannigan
and Phillips. Detectives interviewed Teal on May 17, 2002.
Teal informed the detectives that he had been defendant's
weightlifting partner when they were in prison together.
Teal said that defendant had told him that Flannigan had
stolen $70,000 from Bynum and had purchased a Mercedes
Benz for Phillips. According to Teal, defendant characterized
himself as a hit man for "Fast Eddie," referring to Bynum,
and defendant described in detail how he had murdered
Flannigan and Phillips. After interviewing Teal, detectives

" Sometime after the murders, the Ara'Bel Motel was renamed the Courtesy
Inn.

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interviewed defendant again to determine whether he stood
by the original statements that he had made in 1991 to
Detective Hill. To that end, Detective Winn went line by line
through Hill's report of defendant's interview, and defendant
confirmed that his statements in that report were correct.

Detectives also contacted Bynum, who was then
under indictment for drug trafficking. They interviewed him
on June 5, 2002. Initially, Bynum confirmed the statements
that he had made to detectives in 1991. The next day, how-
ever, Bynum and his attorney met with detectives to negoti-
ate a deal in which the state would agree to a reduction in
Bynum's sentence on the drug trafficking charge in exchange
for his participation in the case against defendant for the
murders of Flannigan and Phillips. At that meeting, Bynum
changed his story in one regard: he reported that he could not
remember whether he had telephoned defendant during half-
time of the basketball game. Thus, Bynum no longer corrob-
orated defendant's whereabouts from 8:00 p.m. to 8:30 p.m.
on the night of the murders. Bynum otherwise confirmed the
accuracy of his original statements. Bynum added, however,
that, after the 1991 interview with detectives, he asked
defendant whether he had killed Flannigan and Phillips and
defendant said, "Yeah, I killed them, Cuz." Bynum further
reported that defendant had made a reference to the fact that
Bynum's family could be killed as easily as Flannigan and
Phillips were killed. Bynum interpreted that comment as a
threat.

On July 8, 2002, detectives interviewed another
inmate, George Modaff, who had been part of defendant's
weightlifting circle in prison. Modaff confirmed that Teal was
defendant's regular workout partner and that defendant and
Teal were very close. Modaff further informed detectives
that, on one occasion, defendant had talked about having
problems with a black pimp and a white girl, referring to
Phillips and Flannigan, and told Modaff that, "I got them
motherfuckers." Modaff learned from defendant that both
victims had been shot. Modaff also reported that their
weightlifting circle grew to include Stanley Ford and Eddie
Lee Davis. Modaff asked defendant why he had let Ford and
Davis join the group, and defendant replied something to the
effect of, "You keep your friends close, and your enemies even

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closer." Modaff asked defendant what he meant by that, and
defendant explained that he had killed a member of Davis's
family. Investigators later confirmed that Phillips was
related to Eddie Lee Davis.

In light of those new developments, Detective Winn
renewed efforts to track down Payne, who had been with
defendant on the night of the murders, but whom Detective
Hill could not locate for an interview in 1991. Winn discov-
ered that Payne was in Helsinki, Finland, and interviewed
him over the telephone on October 25, 2002. Payne informed
the detective that, on the night of the murders, he had been
in Foreman's SUV with Lowery, defendant, and a fifth per-
son, whom he could not remember, and that Foreman had
been driving. Payne stated that defendant had been
extremely angry and upset over $500 that Flannigan had sto-
len from him and used to buy a car for another man. Accord-
ing to Payne, while defendant was "ranting and raving"
about how he was going to kill Flannigan, he was loading a
.45 caliber pistol and telling the others in the vehicle that,
once they dropped him off at "ya'll know where," they had
better "get some place to be seen" within the next 45 minutes
to establish an alibi. Payne remembered that Foreman and
Lowery tried to talk defendant out of killing Flannigan. After
failing in that effort, they dropped defendant off between
9:00 p.m. and 10:00 p.m. at a motel where, as Payne was
aware, Flannigan was known for taking men. Payne also
remembered that defendant wanted to be dropped off within
that time frame because Flannigan would finish her shift at
the Five Spot around then. Payne told the detective that,
once they arrived at the motel, only defendant got out of the
car.

Payne said that he remembered the events of that
night because he rarely had seen anyone that upset before
and the images of defendant raging about how he was going
to kill Flannigan, while loading the gun and talking about
having 45 minutes to get away, stuck in his mind. Payne was
so convinced that defendant would actually go through with
killing Flannigan that he demanded to be taken back to his
dormitory at the University of Portland after defendant was
dropped off at the motel. Finally, Payne told the detective
that, shortly after he had learned about the murders in the

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news, Foreman called him and then handed the telephone to
defendant, who threatened to kill Payne if he talked to the
police. Payne explained that, after that call, he avoided any
contact with the police.

Payne returned to Portland from Finland to testify
before the grand jury on November 7, 2002. Also on that date,
the prosecutor and detectives reinterviewed Lowery.8
Lowery, in describing the events of November 2, 1991,
revealed several details that he previously had not told
police. Specifically, he said that, after failing to get into the
basketball game at halftime, he and Foreman had met defen-
dant in the parking lot of a bar across the street from the
Ara'Bel Motel between 9:00 p.m. and 10:00 p.m. According to
Lowery, defendant and Foreman talked briefly and then both
were gone for up to 10 minutes. Lowery did not pay attention
to where they went. When Foreman got back into the car,
Foreman was "disco[m]bobulated and confused" and said,
referring to defendant, "Fuck [defendant], let him do what-
ever he's going to do. We're out of here."

According to Lowery, they then drove to the
University of Portland without defendant, dropped Payne off
at his dormitory, and went to the New York Diner. While
they were there, defendant called Foreman on his cell phone,
and they left to pick him up at Bynum's apartment. On the
way, Foreman told Lowery that defendant had just killed two
people. They picked up defendant and returned to the New
York Diner, where they stayed until closing. After looking for
some place to eat, they took defendant back to Bynum's
apartment. Lowery also told detectives that, after police ini-
tially interviewed defendant about the murders in 1991,
Lowery and Foreman constructed an alibi and agreed to tell
police the truth about everything that had happened that
night, but to leave out the trip to the parking lot across from
the Ara'Bel Motel. Lowery said that defendant later thanked

8 Lowery's interview on November 7, 2002, the day of the grand jury hearing,
was not recorded. After testifying before the grand jury, Lowery left Portland, but
he returned on January 28, 2003, to be interviewed again. Detective Winn was
present at both interviews. At defendant's pretrial hearing, based on his recollec-
tion of those interviews, Winn testified about Lowery's statements. Thus, Lowery's
statements, as related in the record, consist in part of statements made to police
after defendant had been indicted.

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him for providing an alibi. Lowery, like Payne, also testified
before the grand jury on November 7, 2002.9

The grand jury indicted defendant on November 8,
2002, on eight counts of aggravated murder with a firearm
and four counts of aggravated felony murder with a firearm
for the murders of Flannigan and Phillips. As explained in
detail below, after lengthy pretrial proceedings, the case
against defendant went to trial before a jury on October 11,
2005, and, on October 28, 2005. The jury found defendant
guilty of all counts. Following a penalty-phase proceeding,
the trial court sentenced defendant to death.

## II. DISCUSSION

As noted earlier, we address four of defendant's 14
assignments of error. First, we discuss whether preindict-
ment delay required the trial court to grant defendant's
motion to dismiss. Second, we address whether the trial court
erred in denying defense counsel's motions to withdraw.
Third, we discuss whether the prosecutor's reference in his
opening statement to the expected testimony of a witness
required a mistrial when the witness failed to appear for
trial. Finally, we address defendant's claim that the trial
court erred in refusing to admit evidence of the contents of a
police report.

### A. Preindictment Delay

In his first assignment of error, defendant argues
that the trial court erred in denying his motion to dismiss for
preindictment delay. This court has not identified expressly
what standard of review applies to the denial of a motion to
dismiss for preindictment delay. Both parties take the posi-
tion that this court reviews the trial court's ruling for errors
of law. We agree with that standard. Additionally, to the
extent that the trial court resolved disputed factual issues in
making its ruling, we will not disturb the trial court's express

9 In addition to the individuals described in the text, detectives also inter-
viewed several other people who had either come into contact with defendant over
the years and to whom defendant admitted, in varying degrees of detail, that he
had committed the murders or had heard through others that defendant had com-
mitted the murders.

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or implicit factual findings as long as those findings are sup-
ported by the evidence. See Ball v. Gladden, 250 Or 485, 487,
443 P2d 621 (1968) (stating that standard).

Before trial, defendant moved to dismiss the indict-
ment on the ground that the 11-year period between the date
of the murders and the date of his indictment violated his
right to due process under the Fifth and Fourteenth Amend-
ments to the United States Constitution.1º In support of his
motion, defendant urged that the state "may have acted to
gain tactical advantage" or otherwise improperly delayed in
indicting him. Defendant further urged that the delay
resulted in actual prejudice to his ability to mount an effec-
tive defense. In support of his claim of prejudice, defendant
identified several items of potential evidence that were no
longer available to him. Those evidentiary items fell into two
categories: (1) items procured by the police in 1991 that now
are missing; and (2) items or information that defendant
claimed should or could have been obtained through diligent
investigation, but were not, and are no longer available.

Following an extensive pretrial hearing, the trial
court made detailed findings of fact about the prosecution's
investigatory efforts during the 11-year period between the
murders and the indictment. After making those findings,
the trial court identified the legal standard that it believed
applied to defendant's motion and concluded that defendant
had failed to make the showing necessary for dismissal of the
charges against him based on prosecutorial delay:

"I believe the standard is substantial prejudice and that
the delay, in effect, either by * * * negligence, recklessness,

10 In the trial court, defendant also argued for dismissal on the theory that the
state's delay in indicting him violated his rights to a speedy trial under both Article
I, section 10, of the Oregon Constitution, and under the Sixth Amendment to the
United States Constitution. On review, defendant acknowledges that, for purposes
of both the state and federal speedy trial guarantees, "the time elapsing prior to an
arrest or a formal charge is not taken into consideration in determining whether a
defendant has been given a speedy trial." State v. Serrell, 265 Or 216, 219, 507 P2d
1405 (1973); see also United States v. Marion, 404 US 307, 313, 92 S Ct 455, 30 L Ed
2d 468 (1971) ("[i]n our view, however, the Sixth Amendment speedy trial provision
has no application until the putative defendant in some way becomes an 'accused,'"
which occurs after indictment). In this case, defendant's claim is predicated only on
delay that occurred before his arrest and indictment. In his brief to this court,
defendant presses only his federal due process argument.

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or intent[,] had the purpose of being a tactical advantage.

"In this particular case, having factually found what I
have found, and recognizing that eleven years is a hugely
long time, I am going to deny the motion to dismiss. First of
all, I cannot even find negligence here. There was a conspir-
acy of circumstances that was really kind of tragic.

"I draw a distinction between things that one could
argue in retrospect should have been done or might have
been done in an investigation. Those are issues of weight to
be given to the investigation when and if the case proceeds
to trial and witnesses are cross-examined.

"I find that due to the solidity of [defendant's] and
Mr. Foreman's alibis[.] * * * Everyone's statements fell
together and held together. I don't see that the police had
an obligation to investigate in the sense that [defendant]
has suggested[.] * * *

"At that point in time until '96 when Detective Hill was
killed nothing really developed, and it was not until 2002
that people's stories started to change; that witnesses came
forward whose motives I will not comment on. That's a-
a fact finder at trial issue.

"But it was not until then that there was any hint other
than that of a broken relationship that would have sug-
gested [defendant] was, in fact, the person who had com-
mitted the murders.

"I'm sure people suspected it, but the time frames being
what they were known to be, there was no reason, no basis,
really, upon which the State could have said in good faith
that they could have at that time proved that [defendant]
was the person who committed the homicides beyond a
reasonable doubt.

"So I would not find that the delay was intentional or
reckless or negligent. Substantial prejudice means signifi-
cant. It means that somehow or another the ability of
[defendant] to defend himself has been compromised
through no fault of his own in a way that makes it virtually
impossible to defend himself.

"The only thing in this case that is different from what
happens in many cases in terms of quality of investigation
is that the passage of time has caused the loss of the 911

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tape. We do know the time. We do have interviews with the
caller, and the caller's companion.[11]

"I could not find that that, the absence of supporting
evidence other than the testimony of other witnesses of
[defendant's] alibi[,] [t]he not seizing things from Room 24
in the Ara'Bel of which we have pictures, and the testimony
of criminalists, constitutes a substantial prejudice to
[defendant]."

As the quoted material shows, the trial court specif-
ically found that the state's delay in indicting defendant was
not intentional, reckless, or negligent. Instead, the trial court
found that the delay was due to the state's reasonable efforts
to investigate the case and to obtain sufficient evidence to
bring charges. In addition, the trial court concluded that
defendant had not been substantially prejudiced in his
defense of the case.12

After making those findings and conclusions, the
trial court asked if either party wanted further factual find-
ings on any issues bearing on the motion to dismiss. The state
requested that the court make a finding as to when probable
cause existed to believe that defendant had committed the
murders. On that issue, and based on the evidence adduced
at the hearing, the state submitted that probable cause did
not exist until the summer of 2002. The trial court agreed and
affirmatively found that probable cause developed between
April and June of 2002, when police reinterviewed Bynum,
Lowery, Davis, and Foreman. The trial court further
explained that the "real break" in the state's case came in

11 Defendant's investigator interviewed both Paul and Olivia Gattermeir in
August and September 2003, respectively, concerning their observation of the
events at the Ara'Bel Motel, including their placement of the 9-1-1 calls. Both inter-
views were recorded and admitted into evidence at the pretrial hearing on defen-
dant's motion to dismiss.

12 Defendant urges that the trial court applied a legal test for prejudice that
placed too great a burden on defendant, by requiring defendant to show that it was
"virtually impossible to defend himself." If that were the legal standard that the
trial court applied, we would agree that was incorrect. When the trial court's com-
ments about the legal standard are considered in toto, however, we understand the
trial court to have followed the substantial and actual prejudice standard articu-
lated by federal courts. In all events, although we defer to the trial court's findings
of historical fact, an assessment of prejudice is, in the end, a legal question. Later
in this opinion, we analyze defendant's claim of prejudice without deference to the
trial court's recital of the legal standard.

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April 2002, when the state learned that defendant had
admitted committing the murders to Teal. After making
those additional findings, the trial court denied defendant's
motion to dismiss for preindictment delay.

On review in this court, the parties' fundamental
dispute is over the legal test that applies to determine when
preindictment delay rises to the level of a federal due process
violation. In that regard, the parties agree that the test has
two prongs: substantial prejudice and the reasons for the
delay. The parties disagree, however, whether a defendant
must show that the government intentionally delayed in
indicting the defendant for an impermissible purpose, such
as to obtain a tactical advantage. Citing U.S. v. Barken, 412
F3d 1131, 1134 (9th Cir 2005), which represents a minority
view among the federal circuit courts, defendant argues that
intentional misconduct is not a necessary element of the test.
Instead, defendant urges, the correct analysis requires bal-
ancing the reasons for the delay against any actual prejudice
to defendant to determine whether the delay "offends those
fundamental conceptions of justice which lie at the base of
our civil and political institutions." Id. (internal quotes and
citations omitted); see also Jones v. Angelone, 94 F3d 900, 905
(4th Cir 1996) (following similar test). The state, on the other
hand, relies on the majority view among the lower federal
courts, which requires a defendant who can demonstrate
actual prejudice to his defense to further show that the gov-
ernment intentionally delayed to gain a tactical advantage or
to advance some other improper purpose. See, e.g., U.S. v.
Crouch, 84 F3d 1497, 1511-12 (5th Cir 1996), cert den, 519
US 1076 (1997) (citing cases and discussing rationale for
adopting the legal test endorsed by a majority of the federal
circuit courts).

This court only once before has addressed a claimed
due process violation based on preindictment delay. That
occurred more than 30 years ago, in State v. Serrell, 265 Or
216, 507 P2d 1405 (1973). In that case, the defendant sold
narcotics to an undercover agent and was indicted 141 days
later. In seeking dismissal based on preindictment delay, the
defendant argued that the state had all the information
needed to indict him on the date of the crime and that he had
been prejudiced by the delay in indicting him because he no
longer could recall his whereabouts on the day of the sale. Id.

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In resolving the defendant's due process claim, this court
quoted the following passage from United States v. Marion,
404 US 307, 324-25, 92 S Ct 455, 30 L Ed 2d 468 (1971),
which, at the time, was the lead United States Supreme
Court decision on the constitutional significance of a lengthy
preindictment delay:

"[I]t is appropriate to note here that the statute of limita-
tions does not fully define the appellees' rights with respect
to the events occurring prior to indictment. Thus, the
Government concedes that the Due Process Clause of the
Fifth Amendment would require dismissal of the indictment
if it were shown at trial that the pre-indictment delay in this
case caused substantial prejudice to appellees' rights to a
fair trial and that the delay was an intentional device to
gain tactical advantage over the accused. However, we need
not, and could not now, determine when and in what cir-
cumstances actual prejudice resulting from pre-accusation
delays requires the dismissal of the prosecution. Actual
prejudice to the defense of a criminal case may result from
the shortest and most necessary delay; and no one suggests
that every delay-caused detriment to a defendant's case
should abort a criminal prosecution. To accommodate the
sound administration of justice to the rights of the defen-
dant to a fair trial will necessarily involve a delicate judg-
ment based on the circumstances of each case. It would be
unwise at this juncture to attempt to forecast our decision
in such cases."

(Internal citations omitted; emphasis added.) After quoting
from Marion, this court in Serrell declared that, "[i]n any
event," the defendant's only assertion of prejudice (his inabil-
ity to recall his whereabouts on the date of the offense) was
inadequate to carry his burden to demonstrate substantial
prejudice to his defense. Serrell, 265 Or at 220.

As the Supreme Court in Marion described, the gov-
ernment conceded in that case that an intentional delay for
purposes of securing a tactical advantage would suffice. The
Court implicitly accepted that concession, but ultimately
went on to decide the case based on the defendants' failure to
establish actual prejudice due to the delay.13 Likewise, in

13 In Marion, three years had elapsed between when the government became
aware of the alleged criminal acts and the filing of the indictment. Marion, 404 US
at 308. The defendants moved to dismiss, because, they asserted, the delay was due
to the government's negligence or indifference in investigating the case. Id. at 310.

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Serrell, this court implicitly accepted the proposition that
intentional delay to secure a tactical advantage would satisfy
the reasons-for-the-delay prong of the test. As in Marion,
however, the defendant in Serrell did not make an adequate
showing of actual prejudice, and this court resolved defen-
dant's claim against him for that reason. Thus, neither
Marion nor Serrell resolved, one way or the other, whether a
due process violation can arise when excessive delay in
indicting a defendant is due to something other than inten-
tional prosecutorial misconduct. Indeed, in Marion, the
Supreme Court expressly reserved the question of "when and
in what circumstances actual prejudice resulting from pre-
accusation delays requires the dismissal of the prosecu-
tion[,]" reasoning that it would be "unwise" to attempt to fore-
cast its decision based on the limited record and the single
case before it. 404 US at 324-25.

A few years after Marion and Serrell were decided,
the Supreme Court in United States v. Lovasco, 431 US 783,
796-97, 97 S Ct 2044, 52 L Ed 2d 752 (1977), again deferred
the issue: "[N]either this Court nor any lower court has had a
sustained opportunity to consider the constitutional signifi-
cance of various reasons for delay." The Court therefore
declared that it would "leave to the lower courts, in the first
instance, the task of applying the settled principle[ ]" that
controls the inquiry-viz., that due process affords protection
"only" for violations of "those 'fundamental conceptions of jus-
tice which lie at the base of our civil and political institu-
tions[.]'" Id. at 790, 797. As already noted, since Serrell, this
court has not again addressed a due process claim based on
preindictment delay. This court therefore has not addressed
whether reasons for preindictment delay, other than an
intentional delay to obtain a tactical advantage, may rise to

The district court dismissed the indictment after concluding that the government
must have been aware of the relevant facts soon after the occurrence of the acts and
that there must have been prejudice due to the three-year delay. Id. The Supreme
Court rejected the defendants' Sixth Amendment speedy trial argument, and then
turned to the defendants' argument under the Due Process Clause. Id. at 313-23.
Ultimately, the Court held that the defendants failed to demonstrate that the
preindictment delay violated the Due Process Clause: "No actual prejudice to the
conduct of the defense is alleged or proved, and there is no showing that the
Government intentionally delayed to gain some tactical advantage over appellees
or to harass them." Id. at 325.

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the level of a due process violation. Neither has the Supreme
Court done so.

The lower federal courts have engaged that task,
however, and, as noted, have split into two camps. The major-
ity requires a showing that the government intentionally
delayed in indicting a defendant either to gain a tactical
advantage or for some equally impermissible purpose. See,
e.g., Crouch, 84 F3d at 1511 (discussing majority view). The
minority view-endorsed by only the Fourth and Ninth
Circuits-applies a "more lenient" and open-ended balancing
test to determine if the delay "offends those fundamental con-
ceptions of justice which lie at the base of our civil and polit-
ical institutions." Barken, 412 F3d at 1134 (internal quota-
tion marks and citations omitted); Angelone, 94 F3d at 905
(describing minority test as "more lenient" and adhering to
that test). Under the minority view, it is less clear what rea-
sons will make out a due process violation. In part, the
answer depends on the extent to which a defendant has been
prejudiced, because that determines "where the fulcrum for
the balancing is to be placed." United States v. Mays, 549 F2d
670, 678 (9th Cir 1977). Intent, recklessness, and even negli-
gence may suffice. United States v. Moran, 759 F2d 777, 781-
82 (9th Cir 1985), cert den, 474 US 1102 (1985). As the Ninth
Circuit has explained:

"The greater the length of the delay and the more substan-
tial the actual prejudice to the defendant becomes, the
greater the reasonableness and the necessity for the delay
will have to be to balance out the prejudice. However,
despite the degree of actual prejudice, for a judgment in
favor of dismissal, there must be some culpability on the
government's part either in the form of intentional miscon-
duct or negligence."

Mays, 549 F2d at 678 (citations omitted). Although that split
of lower federal court authority has been in place for many
years, the United States Supreme Court thus far has
declined to resolve it. See Hoo v. United States, 484 US 1035,
1035-36, 108 S Ct 742, 98 L Ed 2d 777 (1988) (White, J., dis-
senting from denial of certiorari) (acknowledging the "signif-
icant disagreement in the lower courts over the proper test"

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and stating that he would grant certiorari to resolve the "con-
tinuing conflict among the Circuits on this important ques-
tion of constitutional law").

Given that legal landscape, our task ordinarily
would be to make our best prediction of the federal test that
the Supreme Court would endorse, based on that Court's
precedents and our informed understanding of the due proc-
ess principle involved. Making that prediction is complicated
by the fact that, as one court has aptly observed, the Supreme
Court's opinions in Marion and Lovasco each "contains some
language that can give comfort" to both the majority and
minority lower federal court views. Crouch, 84 F3d at 1510.
The majority view, by requiring intentional delay for an
improper purpose, such as to gain a tactical advantage, sets
the bar high. But doing so is consistent with the Court's
admonition that statutes of limitation provide the primary
protection against stale prosecutions and that the Due
Process Clause has "a limited role" to play in protecting a
defendant from excessive preindictment delay. Lovasco, 431
US at 789; see Marion, 404 US at 323-24 (describing statutes
of limitations as the primary protection provided by law for
prejudice resulting from the passage of time between crime
and arrest or charge). On the other hand, the "more lenient"
balancing test embraced by the minority view is consistent
with the Court's unwillingness to declare that only inten-
tional delay violates due process, and its invitation to lower
courts to assess on a case-by-case basis the wide-ranging cir-
cumstances that preindictment delays may involve. Lovasco,
431 US at 796-97; Marion, 404 US at 324-25.14

14 Since Marion and Lovasco were decided, the Supreme Court has character-
ized those cases as requiring a defendant, in establishing a due process violation for
preindictment delay, to prove a heightened level of culpability on the government's
part as the reason for its delay in bringing charges against a defendant. See United
States v. Gouveia, 467 US 180, 192, 104 S Ct 2292, 81 L Ed 2d 146 (1984) (a defen-
dant must "prove that the Government's delay in bringing the indictment was a
deliberate device to gain an advantage over him and that it caused him actual prej-
udice in presenting his defense"); see also United States v. $8,850, 461 US 555, 563,
103 S Ct 2005, 76 L Ed 2d 143 (1983) (a due process claim based on preindictment
delay can prevail only if the defendant shows "that the Government delayed seek-
ing an indictment in a deliberate attempt to gain an unfair tactical advantage over
the defendant or in reckless disregard of its probable prejudicial impact upon the
defendant's ability to defend against the charges"). The Court has done so, how-
ever, only in dicta. Meanwhile, the Court has continued to decline review of cases
in which it could resolve the split in the lower federal courts. See, e.g., Hoo, 484 US

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We conclude, however, that this case does not
require us to predict what test the Supreme Court is likely to
endorse. Under either test adopted by the lower federal
courts, as well as any middle-ground test between them,
defendant cannot succeed on his claim of a due process
violation.

As defendant effectively concedes, the record con-
tains no evidence that the state intentionally delayed in
indicting defendant for an impermissible purpose, such as to
gain a tactical advantage. Even if the evidence on that score
were disputed-and it is not-the trial court's factual find-
ings defeat any conclusion that the state intentially delayed
for reasons amounting to prosecutorial misconduct. Defen-
dant's due process claim therefore fails under the majority
test, regardless of whether he suffered actual prejudice. See
Crouch, 84 F3d at 1511 (due process violation based on prein-
dictment delay requires a showing of bad faith or improper
purpose on the government's part).

Defendant runs into equal difficulty under the
minority "balancing" test that he invites us to adopt. As we
have described, that test is more open-ended than the major-
ity test in terms of the reasons for delay that a court may con-
sider. But the prejudice inquiry under the two tests is equally
exacting. A defendant must prove that he or she suffered
"actual, non-speculative prejudice" from the delay by show-
ing "exactly how the loss of evidence or witnesses was preju-
dicial." Barken, 412 F3d at 1134 (citations and quotes omit-
ted). Defendant's showing of prejudice in this case falls short
of that standard.

As we described earlier, defendant's claim of sub-
stantial prejudice is based on two groups of potential items of
evidence that are no longer available: (1) items procured by
the police in 1991 that are now missing; and (2) items or
information that should or could have been obtained through
diligent investigation but were not, and no longer can be
obtained. Taking the second category of items first, defen-
dant's list of unavailable items or information that police

at 1035-36 (White, J., dissenting from denial of certiorari). We therefore find no
guidance in the Court's later characterizations of its holding in Lovasco and
Marion.

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failed to investigate or collect includes (1) bullet trajectories
from Room 24; (2) trace evidence from the crime scene and
the cars driven by defendant and Foreman; (3) fingerprints
on shell casings found at the scene; (4) interviews of the motel
guests who occupied rooms near Room 24; (5) the cartridge of
ammunition that Cline had told detectives defendant had
ejected onto the ground near the Five Spot; (6) the clothing
that defendant had worn on the evening of November 2,
1991; and (7) interviews of Safeway personnel where defen-
dant stated that he had purchased beer and cigarettes.
Defendant also faults the state for failing to interview or
otherwise investigate other people who may have had
motives to kill Flannigan or Phillips.

Much, if not all, of that evidence, however, likely
became unavailable weeks or months after the crimes were
committed. Thus, the disappearance or dissipation of that
evidence was a result of investigatory steps not taken, rather
than delay qua delay in bringing the indictment. Accurately
characterized, defendant's claim seems to be directed to the
state's failure to collect or preserve potentially useful evi-
dence. Such a claim-commonly referred to as “negligent
investigation"-would require a showing of bad faith on the
state's part before a due process violation would arise, which
defendant does not assert. See Arizona v. Youngblood, 488
US 51, 57-58, 109 S Ct 333, 102 L Ed 2d 281 (1988) (so
holding).15

In all events, even assuming that any of the items or
information that defendant lists became unavailable because
of the 11-year charging delay, defendant's claim of prejudice
based on the unavailability of those items and information is
purely speculative. For example, defendant speculates that
the Safeway clerk might have provided testimony that could
have exonerated defendant. Defendant similarly speculates
that inhabitants of the Ara'Bel on the night of the murders
might have testified consistently with defendant's theory.
The same is true of the items of evidence that police did not

16 Thus, to the extent that defendant's claim is more properly characterized as
one based on inadequacies in the state's investigation rather than the delay in that
investigation, he cannot have the benefit of the more open-ended balancing test
used by a minority of circuits for claims of preindictment delay.

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pursue in their investigation-such as defendant's clothing,
bullet trajectories, trace evidence in the cars, and so on.
Those potential witnesses and possible items of evidence
might have shed light on the case, and the light they shed
might have been favorable to defendant. Or they might have
had no evidentiary value, or they might have bolstered the
case against defendant. Any conclusion requires speculation.
Defendant therefore is left to contend that "[b]ecause the
record demonstrates that the state could have discovered and
preserved that evidence in the exercise of reasonable
diligence, the loss of the evidence should be presumed to be
prejudicial to defendant's ability to present an effective
defense." (Emphasis added.) Marion and Serrell, however,
both require that a defendant show actual, not presumed,
substantial prejudice. Marion, 404 US at 324-25; Serrell, 265
Or at 219-20. Simply identifying items and information of
undetermined evidentiary value that the police theoretically
could have obtained does not satisfy defendant's burden to
demonstrate actual prejudice.

As to the first category of evidence (items that police
had in their possession and later lost), defendant emphasizes
the loss of the recording of the 9-1-1 calls that the
Gattermeirs had made in the early morning hours of
November 3, 1991. Defendant argues that the 9-1-1 recording
would have "given rise to a reasonable inference that
Flannigan was shot sometime after midnight, when defen-
dant's whereabouts were accounted for." Defendant's theory
is that the substance of the lost recording could support his
claim that shots were fired around 3:00 a.m., the time of the
9-1-1 calls, when defendant has an undisputed alibi.16

The loss of the recording does not establish actual
prejudice, because the asserted value of its contents is, again,
entirely speculative. Defendant's theory requires the court to
presume that, even though Phillips was murdered around

16 Defendant does not claim that the lost 9-1-1 recording qualified as exculpa-
tory Brady evidence, such that the loss would establish a violation of defendant's
due process rights regardless of whether the state acted in good or bad faith. See
Brady v. Maryland, 373 US 83, 87, 83 S Ct 1194, 10 L Ed 2d 215 (1963) (regardless
of the government's good or bad faith, the government violates a defendant's due
process rights if it does not disclose exculpatory evidence or fails to preserve evi-
dence that might exonerate the defendant).

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10:00 p.m., as the autopsy concluded, Flannigan was not
murdered until shortly before 3:00 a.m., about 5 hours after
Phillips's death. Whether the substance of the calls-as
opposed to their timing-would support that theory is
unknown. Nothing in the record, however, suggests that the
contents would support defendant in that regard. To the con-
trary, Detective Hill interviewed Olivia Gattermeir shortly
after the murders and summarized that interview in a report
that was admitted for pretrial purposes. Detective Winn also
testified about the substance of the 9-1-1 calls during the pre-
trial hearing on defendant's motion. According to that evi-
dence, the Gattermeirs explained that the timing of their
9-1-1 calls did not coincide with when they had heard the
"pops," and that, in fact, they heard the shots between
8:30 p.m. and 10:45 p.m. In addition, a defense investigator
located and interviewed the Gattermeirs before trial, and
both had recalled the events of that night. Apparently, both
were available to testify at trial. Nothing in the record sug-
gests that the content of the recording of 9-1-1 calls differed
from anything that the Gattermeirs later told police or would
have said if called to testify. Under those circumstances, and
without some basis to believe that the contents of the lost
recording would bolster defendant's theory, the unavailabil-
ity of the 9-1-1 recording does not establish actual and sub-
stantial prejudice, as required under either the minority or
majority federal tests for preindictment delay.

Even if the prejudice on which defendant relies is
sufficient to be placed on the scale for purposes of the minor-
ity balancing test, it at most would weigh very lightly. That,
in turn, would mean that the reasons for delay must weigh
heavily in defendant's favor and against the state. Mays, 549
F2d at 678 (balancing test entails a sliding scale in which
"the more substantial the actual prejudice to the defendant
becomes, the greater the reasonableness and the necessity
for the delay" must be). Here, however, as a matter of law, the
reason for the state's delay in indicting defendant-i.e., the
need to sufficiently investigate the crimes and obtain proba-
ble cause to bring charges-does not tip the scales at all.

The Supreme Court has explained that the time nec-
essary to in good faith investigate a crime-so-called "inves-
tigative delay"-is "fundamentally unlike delay undertaken

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by the government solely 'to gain tactical advantage over the
accused.'" Lovasco, 431 US at 795 (quoting Marion, 404 US
at 324). Prosecutors do not deviate from fundamental concep-
tions of justice when they defer indictment until they have
probable cause. Id. at 795-96. Neither are prosecutors obli-
gated to seek an indictment as soon as probable cause exists.
Id. Good faith investigative delay therefore does not deprive
a defendant of due process, "even if [the] defense might have
been somewhat prejudiced by the lapse of time." Id. at 796.
The Ninth Circuit is in accord. Despite whatever showing of
prejudice a defendant may make, good faith investigative
delay does not violate due process. Moran, 759 F2d at 783
(investigative delay does not constitute a deprivation of due
process, even when a defendant might have been somewhat
prejudiced by the delay); United States v. Walker, 601 F2d
1051, 1055-57 (9th Cir 1979) (same). In other words, the
Supreme Court may have left open the general question of
the "constitutional significance of various reasons for delay"
in bringing charges against a defendant, Lovasco, 431 US at
797, but it has foreclosed one-good faith efforts to investi-
gate-as a basis for violating due process. Id. at 796.

Here, the trial court made extensive factual findings
about the state's reason for delay, none of which defendant
challenges, and all of which are supported by the record. The
trial court expressly found that the charging delay in this
case occurred because the investigation stalled in 1991,
shortly after the murders, and then stalled again in 1996-
each time due to defendant's skill in constructing an alibi.
Significantly, the trial court further found that the state did
not have probable cause until at least April 2002, shortly
before defendant was indicted. That was the point at which
police learned from Teal that defendant had made incrimi-
nating admissions while in prison. As the trial court empha-
sized, only then did several key witnesses change their sto-
ries. In particular, Bynum, Lowery, and Payne came forward
with incriminating information in 2002 that they previously
had withheld. Until then, defendant's and Foreman's
accounts were consistent with information provided by
Bynum and Lowery, creating a solid alibi for defendant.

From that evidence, the trial court described the
lengthy delay as a "conspiracy of circumstances" caused by

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"the solidity of [defendant's] and Mr. Foreman's alibis." The
trial court specifically found that the state, in waiting until
2002 to indict defendant, did not act intentionally to gain a
tactical advantage or otherwise act in bad faith. The trial
court further found, expressly, that the state did not act neg-
ligently or recklessly. Those findings refute defendant's
assertions that the state "passively permit[ted] evidence that
it knows to be exculpatory to become unavailable due to the
passage of time" and "simply stopped investigating for no
apparent reason." In effect, the trial court's findings establish
that the lengthy preindictment delay in defendant's case was
the result of the state's good faith efforts to investigate the
case and to gather needed evidence.

In sum, following either the majority or minority
tests adopted by lower federal courts, the trial court properly
denied the motion to dismiss based on defendant's claim of
preindictment delay. Under the majority test, defendant had
to show that the state intentionally delayed for an impermis-
sible purpose, such as to gain a tactical advantage. Defen-
dant neither attempted to nor made such a showing. Under
both the majority and minority tests, defendant has failed to
demonstrate actual and substantial prejudice to his ability to
defend against the charges as a result of the delay. Finally,
even if defendant arguably suffered some actual prejudice,
the delay was for a constitutionally permissible reason: to
investigate and obtain sufficient probable cause to bring
charges. For those reasons, the trial court did not err.

### B. Withdrawal of Counsel

We turn next to defendant's challenge to the trial
court's refusal to permit defendant's two trial counsel to with-
draw from their representation of defendant. Defense coun-
sel twice moved to withdraw, and each time the trial court
denied the motions.17 On review, defendant contends that the

17 At approximately the same time that defense counsel made their motions to
withdraw, defendant also moved for substitution of counsel. Defendant did so
based on what he considered to be a breakdown in the attorney-client relationship
that was so severe as to warrant new court-appointed counsel. On each motion, the
trial court inquired into the reasons for defendant's dissatisfaction with his attor-
ney and found them to be fairly nonspecific. To the extent that defendant identified
particular reasons for seeking new counsel, the trial court found that defendant
was dissatisfied with his counsel for reasons having to do with trial strategy and

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trial court erred because the circumstances that counsel
relied on in making their motions "per se establishe[d] a
breakdown in the attorney-client relationship that is so
severe that counsel [could not] provide adequate assistance of
counsel." We review the trial court's rulings for abuse of dis-
cretion. See State v. Langley, 314 Or 247, 258, 839 P2d 692
(1992), adh'd to on recons, 318 Or 28, 861 P2d 1012 (1993)
(court reviews denial of a motion for substitution of counsel
for abuse of discretion).

Defendant has a constitutionally guaranteed right to
counsel under both Article I, section 11, of the Oregon
Constitution and under the Sixth Amendment to the United
States Constitution.18 As we have observed, under both the
state and federal guarantees, "the defendant's right is not
just to a lawyer in name only, but to a lawyer who provides
adequate assistance." State v. Smith, 339 Or 515, 526, 123
P3d 261 (2005). Thus, both provisions secure for a defendant
"adequate performance by counsel of those functions of pro-
fessional assistance which an accused person relies upon
counsel to perform on his behalf." Krummacher v. Gierloff,
290 Or 867, 872, 627 P2d 458 (1981); see also Strickland v.
Washington, 466 US 668, 686, 104 S Ct 2052, 80 L Ed 2d 674
(1984) (Sixth Amendment right to counsel requires not just
counsel, but effective counsel). In Strickland, the Supreme
Court emphasized the underlying purpose of requiring effec-
tive (which this court refers to as "adequate") counsel:

"The benchmark for judging any claim of ineffectiveness
must be whether counsel's conduct so undermined the

counsel's frank assessment of the case against defendant and the strength of his
defense. Those findings, which are supported by the record, defeat defendant's
claim of error insofar as it is directed to the denial of his motions for substitute
counsel. See State v. Langley, 314 Or 247, 258, 839 P2d 692 (1992), adh'd to on
recons, 318 Or 28, 861 P2d 1012 (1993) ("A simple loss of confidence or disagree-
ment with counsel's approach to matters of strategy is not cause to substitute one
appointed lawyer for another."). We therefore reject defendant's assignments of
error in that regard without further discussion.

18 Article I, section 11, of the Oregon Constitution provides, in part:

"In all criminal prosecutions, the accused shall have the right to * * * be
heard by himself and counsel."

The Sixth Amendment to the United States Constitution provides, in part:

"In all criminal prosecutions, the accused shall enjoy the right * * * to have the
Assistance of Counsel for his defence."

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proper functioning of the adversarial process that the trial
cannot be relied on as having produced a just result."

Id. Just as a defendant's motion for substitution implicates
the constitutional guarantees of right to counsel, so too does a
defense counsel's motion for withdrawal. Thus, the touch-
stone of the inquiry here is the same as for a motion for
substitution-whether there has been a breakdown in the
attorney-client relationship sufficient to establish an abridge-
ment of the constitutional right to counsel. See Langley,
314 Or at 258 (articulating that constitutional standard for
testing a denial of a motion for substitution of counsel); see
also Schell v. Witek, 218 F3d 1017, 1026 (9th Cir 2000) (the
ultimate constitutional question in reviewing a denial of a
motion for substitute counsel is whether the conflict between
the defendant and counsel became so great that it resulted in
representation that fell below Sixth Amendment standards).

In this case, defense counsel first moved to withdraw
about two weeks before trial, just before jury selection. In
support of the motion, defense counsel represented to the
trial court that defendant was totally unwilling to cooperate
with any member of the defense team and that defendant's
family was similarly uncooperative. Defense counsel
expressed their concern that defendant's attitude had "seri-
ously disabled [their] ability to provide effective assistance of
counsel." In denying that first motion to withdraw, the trial
court found that defense counsel were fully prepared for trial
and were capable of adequately protecting defendant's inter-
ests. The court also found that defendant's lack of cooperation
with his attorneys was deliberate and stemmed from defen-
dant's unhappiness with defense counsel's frank assessment
of the unfavorable evidence against defendant, which defense
counsel had a duty to communicate to defendant.

A few weeks later, after the trial had begun, defense
counsel renewed their motion to withdraw. They reported
that defendant continued to disagree with counsel's decisions
as to strategy and witnesses, and that those disagreements
had resulted in "angry flare-ups" by defendant, including
defendant's use of "racial epithets" toward his counsel. Coun-
sel further represented that, in one conference with defen-
dant, at least one of defendant's counsel feared for his per-
sonal safety. Counsel told the trial court:

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"Your Honor, I understand the Court's reluctance to
provide Mr. Davis with new counsel. However, I am stren-
uously requesting that the Court allow my withdrawal as
counsel. I am completely and totally professionally compro-
mised in terms of going any further for this man. He has
given cause for me to feel concern for my own safety, con-
cern for the safety of my co-counsel, concern for the negative
implications that all of this would present to a jury in a case
of this nature."

The trial court denied the second motion to with-
draw. In so ruling, the trial court did not question the sincer-
ity of counsel's concerns. Neither did the trial court doubt
that the relationship between defendant and his counsel was
strained. The trial court thought, however, that defendant
was deliberately manipulating the attorney-client relation-
ship in order to "throw a wrench in the trial simply where bad
evidence has been coming in."19 In addition, the trial court
expressly found that defense counsel had been fully prepared
and professional in their representation and had zealously,
effectively, and professionally represented defendant
throughout the case. In other words, although the strain
between defendant and his counsel was real, that strain was
not undermining counsel's actual representation of
defendant.

On appeal, defendant does not take issue with the
trial court's findings. He argues, however, that defense coun-
sel's statement that they were afraid of defendant and felt
"professionally compromised" is evidence per se of a serious
breakdown in the attorney-client relationship, requiring the
trial court to allow counsel to withdraw. We decline to adopt
such a per se rule. The proper question to ask is whether,

19 The two attorneys who represented defendant during trial were not the first
attorneys appointed to represent him. Two other attorneys had previously been
appointed to represent defendant, and defendant had successfully moved for their
substitution based on an asserted breakdown in the attorney-client relationship. A
third attorney was then appointed, and defendant also successfully moved for sub-
stitution of that counsel. The two counsel who represented defendant as the trial
drew near, and who ultimately represented him through the trial proceedings,
were the fourth and fifth attorneys so appointed. In expressing concern that defen-
dant was deliberating undermining his relationship with his counsel, the trial
court expressed its belief that defendant was doing so in response to the "mounting
evidence against him."

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given the circumstances involved, defense counsel ade-
quately performed "those functions of professional assistance
which an accused relies upon counsel to perform on his
behalf." Krummacher, 290 Or at 872. In this case, the trial
court found that defense counsel were fully adequate in their
representation of defendant, despite the strain that defen-
dant's hostility toward them created.

We note, moreover, that the trial court, in denying
the motions to withdraw, did not foreclose defense counsel
from again renewing their motions if, as the trial progressed,
they found it impossible to represent defendant effectively.
The issue did not arise again, however. The full record of the
trial is before us, and we have reviewed it in its entirety. We
have identified nothing on this record-and neither does
defendant point to anything-to suggest that defense coun-
sel's representation during the remainder of the trial became
deficient or was so compromised that counsel were unable to
represent defendant adequately. As we have said, we are
unwilling to endorse the per se rule that defendant urges.
Instead, the record affirmatively must reveal that counsel's
ability to represent their client was in fact compromised,
resulting in "an abridgment of a criminal defendant's consti-
tutional right to counsel." Langley, 314 Or at 258. The record
does not establish such an abridgment in this case. Conse-
quently, we conclude that the trial court did not abuse its dis-
cretion in denying counsel's motions to withdraw.

### C. Prosecutor's Opening Statement

Next, we consider defendant's assertion that the
trial court erred in denying his motion for a mistrial based
on the prosecutor's description in his opening statement of
the expected testimony of a particular witness, Adonis
Thompson. As it happened, Thompson never testified at trial.
Defendant contends that the prosecutor's opening statement,
in which the prosecutor detailed anticipated testimony that
later was not admitted and subjected to cross-examination,
deprived him of a fair trial.

The legal standards that apply, for purposes of the
issue presented, are relatively settled. We review the trial

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court's denial of the motion for a mistrial for abuse of discre-
tion. Bowen, 340 Or at 508. Even if we conclude that a pros-
ecutor's conduct was improper, a trial court does not abuse its
discretion by denying a mistrial unless the effect of the pros-
ecutor's conduct was to deny a defendant a fair trial. Id. Gen-
erally, a proper jury instruction is adequate to cure any pre-
sumed prejudice from a prosecutor's misconduct. Id. To be
sure, however, statements or testimony that the jury is
instructed to disregard can be "so prejudicial that, as a prac-
tical matter, the bell once rung, cannot be unrung by such an
admonishment." State v. Jones, 279 Or 55, 62, 566 P2d 867
(1977) (internal quotation marks omitted). Ultimately, we
must decide whether, under the circumstances as a whole,
defendant was denied the right to a fair trial, as a matter of
law, by the events that transpired at trial. State v. Compton,
333 Or 274, 293, 39 P3d 833 (2002), cert den, 537 US 841,
reh'g den, 537 US 1068 (2002).

We begin our analysis by examining the totality of
circumstances that bear on whether the prosecutor's opening
statement deprived defendant of a fair trial. Before counsel
made their opening statements to the jury, the trial court
cautioned the jury that those statements were not evidence.
Specifically, the trial court stated:

"Folks, what we're going to do in just a moment is begin
the opening statements of the attorneys. Keep in mind the
opening statements are not evidence. The evidence is the
testimony of witnesses and the exhibits. Opening state-
ments are to give you a roadmap of what the attorneys
believe the evidence will be at trial."

The prosecutor then presented his opening statement. That
statement included descriptions of the anticipated testimony
of several witnesses whom the state planned to call, includ-
ing Adonis Thompson. With respect to Thompson, the prose-
cutor told the jury that he expected Thompson, who knew
defendant in prison, to testify that defendant had admitted to
committing the murders. Thompson was also expected to say
that defendant had complained to Thompson that another
prisoner, Teal, had "snitched" on him to police, and defendant
wanted Thompson to testify that Teal, who was ill, had made
up the story to get out of prison early. The prosecutor, while
holding a piece of paper in his hand, detailed for the jury the

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contents of a note that defendant allegedly had written to
Thompson:

"Adonis Thompson gave us the note. Here's what the note
says: 'Say, my brother, this is what I told my lawyers. I told
them that you was at OSCI with Ronald Teal and you were
walking around the track with him and he said he had that
shit and that he was dying and didn't want to die in the pen-
itentiary, so he was going to lie on me and get out. Because
he didn't want to die in the penitentiary. Thank you, my
brother.'"

After the parties gave their opening statements,
the prosecutor advised the trial court that he personally
had served Thompson with a subpoena to appear and that
the prosecutor had remained in continual contact with
Thompson's attorney, but that Thompson had not complied
with the subpoena. The prosecutor asked the court to issue a
contempt warrant. Defense counsel expressed concern that
the prosecutor had referred to Thompson in his opening
statement, despite the fact that Thompson's statements were
unknown. The trial court asked the prosecutor for his "good
faith basis [to believe that] you're going to be bringing him in
quickly." The prosecutor explained that he remained optimis-
tic that Thompson would appear, based on his conversations
with Thompson's attorney and with a close relative of
Thompson's, as well as a voice message that Thompson had
left on the prosecutor's answering machine. The prosecutor
thought that Thompson just needed an extra couple of days
and would be in the area the next day. Defense counsel made
no formal motion to the court at that time.

The trial proceeded. Thompson never appeared, and
so he never testified. After both sides rested and the case was
submitted to the jury, defendant moved for a mistrial. Defen-
dant argued that Thompson's testimony was improperly
placed before the jury during prosecutor's opening state-
ments and that defendant was prejudiced by it. In response,
the prosecutor asserted that he had had a good faith belief
that Thompson would testify, based on the events as they had
unfolded up to the time of opening statements. In particular,
the prosecutor represented to the trial court that the prose-
cutor had met with Thompson and his attorney about a week
before trial began. At that time, Thompson was in custody on

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an unrelated matter and had signed a formal cooperation
agreement with the prosecution. Thompson, who assured the
prosecutor that he would appear for trial, risked going to
prison if he violated that agreement. The prosecutor further
told the trial court that, as the trial date approached, the
prosecutor attempted to contact Thompson, without success.
Just before opening statements, however, Thompson's attor-
ney phoned the prosecutor and informed him that Thompson
would contact the prosecutor the day after opening state-
ments. The prosecutor relied on that representation in mak-
ing his opening statement. When Thompson did not appear
as expected, the prosecutor enlisted the help of investigators,
who staked out his last known residence and his girlfriend's
residence. At some point, police learned that Thompson may
have gone to Las Vegas. The prosecutor contacted the Las
Vegas Police Department to request that they notify him if
they learned Thompson's whereabouts. As to the defendant's
concern about the note, the prosecutor explained that he had
not been in possession of the note, but instead incorporated
its contents in his opening statement based on his recollec-
tion of what it had stated. At the court's request, the prose-
cutor affirmed under oath that everything that he had stated
to the court regarding his efforts to secure Thompson's testi-
mony was true.

In his response to the prosecutor's statement, defen-
dant did not take issue with or otherwise challenge the pros-
ecutor's good faith. Defendant continued to argue, however,
that the opening statement's reference to Thompson's
expected testimony, including the alleged note from defen-
dant, was highly prejudicial. Defendant stated that he was
"not asking for a curative instruction, because that's going to
double ring the bell."

The trial court denied defendant's motion for a mis-
trial. In so ruling, the court made two findings as to the pros-
ecutor's good faith: (1) the prosecutor had a good faith belief
that he had secured Thompson's appearance when he pre-
sented the opening statement; and (2) the prosecutor made a
good faith effort to locate Thompson following his failure to
appear pursuant to the subpoena. As to whether the prose-
cutor's opening statement prejudiced defendant, the court

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noted that at least seven witnesses had given testimony sim-
ilar to what Thompson would have offered, all concerning
statements that defendant allegedly had made regarding his
involvement in the murders. The trial court offered defen-
dant the opportunity for the following curative instruction:

"My thought was simply to tell the jury that any statements
made in opening regarding the testimony of Mr. Adonis
Thompson are to be accepted as not true and they're to dis-
regard any reference to him because he was not a witness in
this case."

Defendant declined that curative instruction, choosing
instead to address the matter in closing argument:

"You heard on opening statement by [the prosecutor] that
there was yet another witness here, another witness going
to come in here and tell you [defendant] did it. And, in fact,
he wrote a letter. [Defendant] wrote a letter to him, and
he read the letter to you. The guy's name was Adonis
Thompson. Have you seen an Adonis Thompson? Have you
seen a letter introduced into evidence here?"

On appeal, defendant argues that the prosecutor's
statements concerning Thompson's expected testimony were
unduly prejudicial because those statements added weight to
the state's case that was not subject to cross-examination and
thus denied defendant a fair trial.20 In support of his argu-
ment, defendant principally relies on Frazier v. Cupp, 394 US
731, 89 S Ct 1420, 22 L Ed 2d 684 (1969). In Frazier, the pros-
ecutor in opening statements summarized the expected tes-
timony of Rawls, a codefendant. Id. at 733. As the Supreme
Court described the prosecutor's remarks, the summary of
Rawls's testimony was not emphasized, took only a few
minutes, and was sandwiched in between a description of
other evidence. Id. The prosecutor also referred to a piece of
paper that he was holding to refresh his recollection about
something Rawls had stated, which, the prosecutor later
acknowledged, the jury might have believed was a written

20 In contrast to defendant's statements to the trial court, defendant now also
contends that the prosecutor acted intentionally and in bad faith because the pros-
ecutor had been aware that Thompson might not appear for trial. Defendant's
argument regarding the prosecutor's alleged bad faith is not preserved, and we do
not consider it. See State v. Wyatt, 331 Or 335, 341-47, 15 P3d 22 (2000) (court
declined to consider issue not preserved in the trial court).

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statement by Rawls. Id. at 734. The defendant unsuccessfully
moved for a mistrial at the end of opening statements
(evidently because the defense knew that Rawls likely would
not testify). Id. When the prosecutor called Rawls to the
stand during trial, Rawls asserted his privilege against self-
incrimination. Id. The defendant renewed his motion for a
mistrial, and the trial court again denied it. Id.

In a habeas proceeding before the Supreme Court,
the defendant argued that the prosecutor's opening state-
ment concerning Rawls's testimony added weight to the
state's case in a form not subject to cross-examination, thus
violating his constitutional right of confrontation. Id. The
Supreme Court disagreed. Id. at 735. The Court emphasized
that the alleged impropriety occurred during opening state-
ments and that the jury was told that the opening statements
are not to be considered evidence. Id. The Court also noted
that Rawls's statement was not a "vitally important part of
the prosecution's case." Id. The Court explained:

"It may be that some remarks included in an opening or
closing statement could be so prejudicial that a finding of
error, or even constitutional error, would be unavoidable.
But here we have no more than an objective summary of
evidence which the prosecutor reasonably expected to pro-
duce. *** Certainly not every variance between the
advance description and the actual presentation consti-
tutes reversible error, when a proper limiting instruction
has been given."

Id. at 736.

In this case, defendant attempts to rely on Frazier by
distinguishing it. Specifically, defendant asserts that the
prosecutor's statement here was far more prejudicial,
because the prosecutor detailed Thompson's testimony and
appeared to read from the alleged note from defendant. We
disagree that the differences in the two cases are appreciable
enough to dictate a difference in outcome.

The most important factor in the Supreme Court's
decision in Frazier was that the statements were part of the
prosecutor's opening statements and not part of an eviden-
tiary phase of the trial. The Court emphasized that opening
statements pose less danger to a defendant's right to a fair

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trial than when inadmissible evidence is placed before the
jury during trial because "the jury will ordinarily be able to
limit its consideration to the evidence introduced during the
trial." Id. at 736.21 The Court did not foreclose the possibility
that remarks in an opening statement could be "so prejudi-
cial" as to require a finding of constitutional error. Id. at 736.
As the Court acknowledged, "[m]any things might happen
during the course of the trial which would prevent the pres-
entation of all the evidence described in advance." Id. It
therefore was unwilling to declare that "every variance
between the advance description and the actual presentation
constitutes reversible error, when a proper limiting instruc-
tion has been given." Id. In particular, the Court was unwill-
ing to do so when the objectionable reference was part of the
prosecutor's "objective summary of evidence which the pros-
ecutor reasonably expected to produce" and nothing more. Id.

Here, as was true in Frazier, the reference to
Thompson's testimony occurred during the prosecutor's
"objective summary" during opening statements about the
evidence that the prosecutor expected to produce. Also as in
Frazier, the prosecutor's statements describing Thompson's
expected testimony were included among descriptions of the
expected testimony of several other witnesses; no special
emphasis was placed on Thompson's expected testimony or
its value in establishing defendant's guilt. Just as the trial
court in Frazier gave the jury an instruction about the pur-
pose of opening statements, id. at 735, so, too, did the trial
court in this case advise the jury that opening statements
were not evidence. Finally, this case involves something that

21 For that reason, this case differs from State v. Jones, 279 Or 55, 566 P2d 867
(1977), where this court held that the defendant was denied a fair trial based on the
prosecutor's examination of two witnesses during a rape trial. In Jones, the prose-
cutor elicited testimony from two witnesses that the defendant had committed rape
"many times" before. Id. at 61-62. The trial court instructed the jury to disregard
those statements and denied the defendant's motion for a mistrial. Id. at 62. Later
during the trial, the prosecutor offered evidence of the defendant's criminal record;
no record was offered of any prior conviction for rape or any sex offense. Id. In
reversing the conviction, this court explained that the prosecutor persisted in
insinuating that defendant had previously committed rape, knowing that he had
no proof of prior rape convictions. Id. at 63. In such a case, this court held, the prej-
udice was so pervasive that the defendant was denied a fair trial. Id. The curative
instruction did not suffice, because the testimony was so prejudicial that, "as a
practical matter, the bell once rung, cannot be unrung by such an instruction." Id.
at 62 (internal quotation marks omitted).

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Frazier did not. Specifically, the trial court in this case
offered to give a curative instruction that would have been
tailored to the statements about Thompson's testimony, one
that would have gone so far as to tell the jury to assume that
the statements were not true. Defendant declined that
instruction.22

On balance, we conclude that the prosecutor's sum-
mary of Thompson's expected testimony cannot be said to
have so prejudiced defendant as to have denied him a fair
trial. The trial court therefore did not abuse its discretion by
denying defendant's motion for a mistrial.

### D. Exclusion of Detective Hill's "9-1-1" Report

The final assignment of error that we address is
defendant's claim that the trial court erred in sustaining the
state's objection to hearsay testimony concerning Detective
Hill's written police report about the contents of the missing
recording of the Gattermeir 9-1-1 calls. On appeal, defendant
claims that the trial court erred by sustaining that objection,
because his inability to examine Norman about Hill's written
report deprived him of an opportunity to present a complete
defense and therefore violated his right to due process. See
Holmes v. South Carolina, 547 US 319, 320, 126 S Ct 1727,
164 L Ed 2d 503 (2006) (trial court's authority to exclude evi-
dence is limited by the constitutional guarantee that a crim-
inal defendant have "a meaningful opportunity to present a
complete defense" (quoting Crane v. Kentucky, 476 US 683,
690, 106 S Ct 2142, 90 L Ed 2d 636 (1986) (internal quotation
marks omitted))).

As we noted earlier, Detective Hill, who was
deceased by the time of trial, had written a report about her
interview with Olivia Gattermeir concerning the substance
of her 9-1-1 call. That report was mentioned by the trial court
during the pretrial hearing on defendant's motion to dismiss
for preindictment delay, in relation to the court's conclusion
that defendant was not prejudiced by the loss of the 9-1-1
recording. The trial court also mentioned defendant's own

22 The Supreme Court in Frazier noted that a "more specific limiting instruc-
tion might have been desirable" in addition to the general pretrial instruction that
opening statements are not evidence, "but none was requested." 394 US at 735
(unnumbered footnote). Here, one was offered but declined.

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recorded 2003 interview with the Gattermeirs as substitute
evidence for the 9-1-1 recording.

At trial, however, defendant did not rely on his own
interviews of the Gattermeirs; neither did he seek to have
Detective Hill's written report admitted into evidence.
Instead, on cross-examination of retired Detective Norman,
defendant asked Norman to answer certain questions
designed to reveal the contents of Detective Hill's written
report. Specifically, defense counsel asked Norman to read to
himself a paragraph from Hill's written report, in which Hill
had described Olivia Gattermeir's explanation of the sounds
she heard coming from Room 24 on the night of the murders,
and then asked Norman whether he "had reason to believe
that sounds had been reported to 9-1-1 which sounded like
pops[.]" The state objected on the ground that the question
called for hearsay, and the trial court recessed the proceed-
ings to discuss the matter outside the presence of the jury.

After a conference in chambers, the court instructed
the jury to ignore any references during Norman's cross-
examination to "pop" sounds:

"THE COURT: Folks, we are going to take a break at
this point. There has been talk about a 911 tape. Any sub-
stance of that tape is not in evidence yet. Statements
regarding pops I'm going to ask you to disregard at this
time. The attorneys and I will have a further discussion
about that. And questions will be formulated based on a dis-
cussion we'll have outside of your presence on the issue of
that 911 tape. So for this evening, we're going to take a
break."

The next day, the trial court and the parties resumed
their discussion of the issue, and the trial court asked the
parties how they wanted to handle the matter. The state
renewed its hearsay objection, but argued further that, if the
court was inclined to allow in any information about the
contents of Hill's written report about his interview of
Olivia Gattemeir, then the court should admit the "entire
context" of the interview. To that end, defendant proposed
that Detective Norman be allowed to read paragraphs 2 and
3 of a certain page from Hill's report into the record, which, in
defendant's view, would provide the "full content" of the

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report. The prosecutor responded, however, that the para-
graphs that defendant suggested "would take the matter out
of context" and suggested, again, that if the court was going
to allow the information in, it was appropriate to have the
"entire context" of the conversation put into evidence:

"And here's what I mean by that. To put in paragraphs 2
and 3 only would leave this listener, the jury, with an
impression, if not an understanding, that the call, which we
do agree was made at 2:55 a.m., the information would be
then that the pop, pop or whatever sounds they were and
they're described as pop, would have occurred in that gen-
eral time frame, in the 2:55 time frame.

"That is not the entire context of the conversation that's
had with [Olivia] Gattermeir, because the preceding para-
graph enlightens us as to when she and her husband did
hear that pop, pop. And how it's described is that she says-
and I'm going to summarize, and I think I can fairly sum-
marize. But she says she and her husband went to dinner
on November 2nd at between 8 and 10 p.m., 8 and 10 p.m.
on the 2nd. Upon their return from dinner, Mr. Gattermeir
was preparing to take a shower. And that period of time
then is 30 to 45 minutes after their return from dinner.

"That's when they heard the pop, pop. So in the context
of what is said in its entirety, the pop, pop is heard in that
8 to 10 general time period on the 2nd, as opposed to 2:55
a.m. on the 3rd, two completely different things.

"And so the State, again, we have a general objection to
hearsay, but if the Court's going to overrule and allow this
information in, it should come in in its entirety, not in part."

The trial court ruled that it would not admit any
selective portions of the report or testimony about selective
portions of the report, given the state's objection and the fact
that the information "does appear * * * to be hearsay." The
court observed that defendant had not identified any excep-
tion to the hearsay rule that applied. The trial court never-
theless offered defendant the opportunity to argue that "due
process requires somehow this evidence comes in." Defen-
dant responded that he was not prepared to make that argu-
ment, but asked

"to reserve further argument on that, whether this comes
under the residual clause of the hearsay exception, whether

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due process requires its allowance of its introduction due to
the unavailability of [Detective Hill] and the apparent loss
of the evidence.

"So if I could reserve argument on that, I think we
could-we could just move on at this point."

The court concluded by reiterating that it would sustain the
state's hearsay objection, but that defendant could raise the
issue again later in the trial if defendant so chose. Defendant
did not renew his effort to introduce either Norman's testi-
mony on the subject or the contents of Hill's report.

Now, defendant argues that the trial court's pretrial
ruling-i.e., that he did not suffer undue prejudice by the loss
of the 9-1-1 recording-and the trial court's subsequent mid-
trial evidentiary ruling-i.e., that defendant could not elicit
Norman's description of Hill's written report, or have selec-
tive portions of that report admitted into evidence-were
contradictory. Defendant contends that the net effect of the
two rulings was to "deprive defendant of his only complete
defense" and thus violated due process. Despite the trial
court's invitation to do so, however, defendant did not raise
a due process argument for the trial court to address or
decide. Defendant's constitutional argument is therefore
unpreserved.

Even if defendant's hearsay objection encompassed a
due process objection, the trial court did not err. Defendant's
claim that he was deprived of his "only complete defense"
rests on his assertion that, in the absence of the actual 9-1-1
recording, Hill's written report provided him with his only
means of proving that Flannigan's death may have occurred
at a time when he had an alibi. The predicate for defendant's
claim is flawed, however. Hill's written report was not defen-
dant's only means of seeking to establish when the Gatter-
meirs heard the "pop, pop" sounds. Defendant's investigator
had contacted and interviewed the Gattermeirs by phone,
they could recall the events in question, and they apparently
were available as witnesses. Defendant did not, however,
seek to use his own investigation in any way.

More fundamentally, however, defendant was not
entitled to insist on presenting only selective portions of the

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report. When defendant sought to ask Norman about isolated
statements in the report, and when the state objected that
doing so deprived the statements of their context, defendant
offered to introduce only two selected paragraphs in the
report. Defendant was unwilling to include other portions
that provided added context for the Gattermeirs' explanation
of what they heard and when they had heard it. Even assum-
ing that defendant had a due process right to examine
Norman about the report, or to introduce the report itself
because the 9-1-1 recording had been lost, defendant was not
entitled to do so selectively and to preclude the admission of
other equally relevant portions of the report. Under the cir-
cumstances, the trial court did not err in its evidentiary
ruling.

# III. CONCLUSION

For the reasons set out above, we reject defendant's
arguments. We therefore affirm defendant's convictions and
the sentence of death.

The judgment of conviction and sentence of death
are affirmed.

WALTERS, J., concurring.

I concur in the court's decision to affirm defendant's
conviction and, with respect to each assignment of error that
the court discusses, I concur with its reasoning. Although I
also concur in the court's decision to affirm defendant's sen-
tence of death, I must explain more fully.

Defendant raises many arguments as to the con-
stitutionality of the death penalty that this court previously
has rejected. I did not participate in those decisions, and
although I reserve my right to reconsider some or all of them,
I feel constrained, at least in this case, by the doctrine of stare
decisis. That doctrine requires the balancing of the "undeni-
able importance of stability in legal rules and decisions" with
the "important need to be able to correct past errors."
Stranahan v. Fred Meyer Inc., 331 Or 38, 53, 11 P3d 228
(2000).

Recently, jurists who had voted many times to affirm
sentences of death have reassessed the constitutionality of

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the death penalty in light of their experiences with its admin-
istration and objective evidence of the evolving standards of
decency. See Baze v. Rees, ____ US __ , 128 S Ct 1520, 1551,
170 L Ed 2d 420 (2008) (Stevens, J., concurring) (stating that,
in his experience, "the death penalty represents the pointless
and needless extinction of life with only marginal contribu-
tions to any discernible social or public purposes[ ]" (citation
omitted)); Doss v. State,
So 2d
2008 WL
5174209, *15-16 (Miss 2008) (Diaz, J., dissenting) (drawing
upon judicial and state experience to conclude that despite
efforts to limit arbitrary or disproportionate sentences, state
system "does not answer Eighth Amendment concerns-it
exacerbates them").

This court also has emphasized that the pull of prec-
edent " 'is strong, but it is not inexorable.'" Stranahan, 331
Or at 53 (quoting Hungerford v. Portland Sanitarium, 235 Or
412, 415, 384 P2d 1009 (1963)). The degree to which any
opinion binds future tribunals "depends, of necessity, on
[that opinion's] agreement with the spirit of the times or the
judgment of subsequent tribunals upon its correctness as a
statement of the existing or actual law." Id. at 54 (internal
quotation marks, citations, and emphasis omitted).

The strength of the bond of an earlier ruling is
directly proportionate to the moral and intellectual authority
that continues to inform our understanding of that earlier
holding. When presented with the opportunity to do so, I urge
this court to consider our state's experience in imposing the
death penalty and to examine its constitutionality anew.

S053071, Opinion — State v. Davis

Testo completo

OCR transcription for search; preserved printed pages are authoritative

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