State v. Serrano
Case #: S058390
Brewer, J. for the Court; En Banc.
Full Text Opinion: http://www.publications.ojd.state.or.us/docs/S058390.pdf
Criminal Law: Defendant's failure to preserve an argument regarding the sufficiency of evidence will lead to an affirmation of conviction. Also, where defendant does not object to testimony in a penalty-phase hearing and that testimony would not deny defendant a fair penalty-phase hearing, the trial court is not obligated to strike that testimony.
On automatic and direct review of the judgment of conviction and sentence of death. Defendant was convicted of ten counts of aggravated murder for the homicide of three people and felony-murder for committing the homicides during burglary-theft. In a penalty-phase hearing the jury determined that defendant should receive a death sentence, and the trial court affirmed that sentence. On review, defendant raised 30 assignments of error. The Court rejected all of defendant’s assignments of error and affirmed the judgment of conviction and death sentence. Among the assignments of error, defendant argued that the evidence of felony-murder was insufficient, despite not making that argument at trial court. The Court held that the trial court’s failure to acquit defendant on review was not an error, because defendant failed to preserve his argument for the sufficiency of evidence with regard to the convictions for aggravated felony murder. Additionally, defendant argued that the death sentence should be reversed because the trial court failed sua sponte to strike testimony during the penalty-phase hearing. The Court held that the testimony did not deny defendant a fair penalty-phase hearing and defendant did not object to that testimony; therefore, the trial court did not have to strike the testimony. Affirmed.