State v. Bowen 6/28 (Opinion)

State of Oregon v. Gregory Allen Bowen, (TC 02CR0019) (S058431)

Opinion

Oral Argument (3/9/12)

From the Oregon Supreme Court (media release):

On automatic and direct review of judgment of conviction and sentence of
death imposed by the Curry County Circuit Court following remand from the Oregon
Supreme Court. The corrected judgment is reversed and remanded with instructions to
again merge the aggravated murder and intentional murder convictions, and to separately
enumerate the aggravated factors underlying the merged aggravated murder convictions.
The conviction and the sentence of death are otherwise affirmed. Opinion of the Court by Justice Paul J. De Muniz.

In 2002, Gregory Allen Bowen (defendant) was convicted on two counts of
aggravated murder (death occurring in the course of both robbery and burglary) and also
one count of intentional murder, among other crimes, and sentenced to death. On
automatic and direct review in 2006, the Oregon Supreme Court affirmed defendant’s
convictions and the sentence of death, but remanded for entry of a corrected judgment that
merged defendant’s aggravated murder and intentional murder convictions. Following a
resentencing hearing in March 2010, the trial court entered a corrected judgment that
merged those convictions and again imposed a sentence of death. On automatic and direct
review, defendant raised three assignments of error that challenged the corrected judgment,
all relating to the trial court’s denial of various defense motions made on remand.

In a unanimous opinion by Justice Paul J. De Muniz, the Oregon Supreme
Court affirmed the trial court’s denial of defendant’s motions on remand. First, the Court
determined that the trial court correctly concluded that ORS 138.012(2)(a) — which sets
out alternative sentencing procedures following remand of a capital case based on
prejudicial error in the initial sentencing proceeding — did not apply to defendant’s remand
proceeding because the original remand instruction was limited to entry of a corrected
judgment that merged defendant’s aggravated murder and murder convictions. It followed
that the trial court correctly entered a corrected judgment on remand, rather than giving the
state the election under ORS 138.012(2)(a)(A) and (B) to sentence defendant to life with
the possibility of parole or proceed with a new penalty-phase proceeding before a jury.
Second, the Court summarily concluded that the trial court correctly denied defendant’s
motion for a new trial based on the trial court’s decision during the initial trial to require
defendant to wear a stun device. Third, the Court affirmed the trial court’s denial of
defendant’s motion to dismiss based on state and federal constitutional “speedy trial”
provisions, reasoning that no prejudice to defendant resulted from the delayed entry of the
corrected judgment (more than two years’ delay between issuance of the appellate
judgment and scheduling of resentencing proceedings), to the extent of implicating either
constitutional provision.

However, after reviewing the corrected judgment entered on remand, the
Court determined that the corrected judgment failed to separately enumerate the
aggravating factors underlying defendant’s merged convictions for aggravated murder
(death occurring in the course of robbery, death occurring in the course of burglary). The
Court concluded that that omission amounted to error on the face of the record, and the
Court exercised its discretion to reverse the corrected judgment and remand, directing
entry of a new corrected judgment that, in addition to again merging the two counts of
aggravated murder and one count of intentional murder, also separately enumerates each of
the aggravating factors underlying the merged aggravated murder convictions. The Court
otherwise affirmed defendant’s merged convictions and the sentence of death.

Read more:

State of Oregon v. Gregory Allen Bowen, 03/09/2012