Michael James Hayward

Case record: Michael James Hayward

Status

Michael James Hayward was sentenced to death in 1996.

Background

Hayward was involved in crimes committed over Labor Day weekend.

Soon after his arrest, Hayward told police that he was not a satanist, but that he believed that "God is weak and Satan is strong."

During his initial police interview, Hayward showed no remorse for Wall's murder or the assault on Ream. He declared that Wall's was just another death, that "life ain't worth shit," and that Wall would have died anyway. Hayward seemed amused about the crimes and the fact that he had been arrested.

The offence

Hayward participated in the Dari Mart crimes.

Investigation and arrest

Hayward was arrested at the camp just before Labor Day.

Trial

Rabago pleaded guilty to felony murder, attempted aggravated murder, first-degree assault, first-degree robbery, first-degree burglary and first-degree kidnapping for the Dari Mart crimes.

Pursuant to a plea agreement, if Rabago testified truthfully for the state at Hayward's trial, Rabago would be sentenced to 12 years in prison.

Johl Brock pleaded guilty to felony murder, first-degree kidnapping, first-degree robbery, and first-degree burglary. His plea agreement provided that if he testified truthfully for the state at Hayward's trial, he would receive a sentence of 9 to 11 years.

A jury convicted Hayward of aggravated murder, intentional murder, two counts of felony murder, two counts of attempted aggravated murder, first-degree assault, first-degree robbery, first-degree kidnapping, and first-degree burglary.

Rabago, Johl Brock, Jason Brock, and Donna Ream testified for the state at Hayward's trial.

As noted at the outset, Hayward was convicted of three counts of aggravated murder and many other crimes.

Sentencing

During the penalty phase, Hayward testified that he read the bible in prison, that he now believes in God, and that he cares about the victims' families.

The jury voted unanimously to impose the death penalty.

Appeals

Assignments of error regarding pretrial proceedings

Plea bargaining

Hayward contended that the trial court erred in denying his motion to prohibit the death penalty, because "the district attorney did not have a systematic policy concerning plea negotiations in capital cases. Defendant's death sentence should be reversed because he was denied the opportunity to enter into plea negotiations in this case."

Hayward argued that evidence in the record did not support the conclusion that the state had a systematic policy of plea negotiations in capital cases, and he argued that if a systematic plea bargaining system had been in place, the prosecutor would have entered into plea negotiations with him.

The state responded that Hayward's general, abstract concerns regarding the alleged lack of a systematic plea bargaining policy were irrelevant to the validity of Hayward's conviction and sentence, and that Hayward failed to complain at trial about the state's failure to engage in plea negotiations with him.

At trial, Hayward argued: "[t]he manner in which the State makes its decision to seek the death penalty, not seek the death penalty, or to undertake plea bargaining is arbitrary and capricious and is not based upon a coherent and systematic scheme and therefore it violates the Defendant's rights under the 5th, 6th, 8th and 14th Amendments of the U.S. Constitution and Article [I], [s]ection 20[,] of the Oregon Constitution."

The trial court interpreted Hayward's motion to prohibit the death penalty in this case "as an attack on the plea bargaining system" and conducted a pretrial hearing to examine whether the Lane County District Attorney's office had a systematic policy for determining when to engage in plea negotiations in capital cases.

The trial court ultimately denied Hayward's motion.

The appellate court concluded that Hayward had preserved his challenge to the Lane County District Attorney's policy offering plea bargains and ruled on that issue.

The appellate court stated: "I do not find improper motive. I do not find arbitrariness with respect to the way in which these cases that I've heard about have been handled. And I do not therefore find a basis to grant the motion to prohibit the death penalty."

The appellate court concluded that the record supported the trial court's findings and that Hayward had not met his burden of proving that the Lane County District Attorney's office lacked a coherent, systematic policy regarding plea negotiations in capital cases. The appellate court also concluded that Hayward did not allege disparate treatment, and did not contend that he was denied the opportunity to plea bargain based on class discrimination, on concerns collateral to a fair prosecution for aggravated murder, or on animus towards Hayward or his attorney.

Proportionality review

Hayward also contended that the trial court erred in denying his pretrial motion to compel the state to disclose on a statewide basis the cases in which a defendant had been charged with aggravated murder and was eligible for the death penalty so that the court could conduct a proportionality review.

Hayward acknowledged that the issue had been decided against him in Cunningham, but he contended that "this court should reexamine its holding in Cunningham and grant defendant relief in this case."

The appellate court declined to reexamine Cunningham.

Guilt-phase assignments of error

Admissibility of death metal music and satanism evidence

Hayward contended that the trial court erred in overruling his objections to the introduction of evidence about death metal music and satanism because that evidence was not relevant under OEC 401.

Hayward also contended that even if the evidence was relevant to any theory in the state's case, it was more prejudicial than probative, in violation of OEC 403, and amounted to evidence of prior bad acts, in violation of OEC 404(3).

The state responded that Hayward made only sporadic objections to the introduction of death metal music and satanism evidence, that a considerable amount of death metal music and satanism evidence was received without objection, that the evidence supported the state's theory regarding at least one of the motives for the crimes, and that in the context of other unchallenged evidence on those subjects, the evidence was not unfairly prejudicial.

At trial, Hayward objected to Jason Brock's description of death metal music and to Jason Brock's testimony that the lyrics in Cannibal Corpse songs "explain or picture through words killing people maybe."

Hayward objected to Johl Brock's testimony that the death metal lyrics to which the group listened "described basic satanic practices, ceremonies and stuff."

Hayward also objected to Johl Brock's testimony that: "pretty much what got [Rabago and me] dabbling in satanism was the message this particular CD [by the band Deicide] gave us. I mean, looking through the lyrics and stuff. That's how we got involved in satanism."

Hayward further objected to Johl Brock's testimony that satanism is "just another religion. Just a religion that doesn't believe in the same things as Christians."

Finally, Hayward objected to Detective Ryan's testimony about statements Hayward made to him after Hayward was arrested regarding Hayward's involvement in satanism when he was 16 or 17 years of age.

The appellate court concluded that the evidence was relevant under OEC 401 because one of the theories underlying the charges was that death metal music and satanism provided at least one of the motives for Hayward, Rabago, Brumwell, and Johl Brock when they planned and committed the Dari Mart crimes.

The appellate court concluded the evidence was relevant to the state's theory that Hayward and the others intended to commit murder, not merely robbery, when they entered the Dari Mart on the night of their crimes. The appellate court also concluded the evidence was relevant to help explain the brutality of the attacks on Wall and Ream and to explain the group's intention that Ream also die, not merely to cover up evidence of their other crimes, but also to allow them to carve satanic symbols in the bodies or to leave other blood evidence of satanism at the scene.

The appellate court concluded that in that context, the evidence was not unfairly prejudicial and that the trial court did not abuse its discretion in overruling Hayward's motion to exclude the evidence on that ground.

The appellate court noted that:

• The state informed the jury during its opening statement that it would present evidence about death metal music and satanism.
• At least two witnesses who saw Hayward and the others on the day of the crimes described their black T-shirts and the markings on them.
• One of those witnesses stated that his "first impression" of Hayward was that he was "a Satan worshiper."
• Rabago testified that all four men were "into evil and we were all pretty much deathers."
• Rabago testified that "maybe" the group listened to death metal music before entering the Dari Mart in order to prepare themselves for the crimes and that Rabago had committed the crimes "in the essence" of, or to honor, members of the death metal bands Deicide and Cannibal Corpse.
• Ream testified that Brumwell emitted a "death metal growl" just before he attacked her and that the growl sounded like one she heard later on a Cannibal Corpse compact disc.
• Johl Brock and Rabago testified that the group discussed their plan to carve satanic symbols into the bodies of whomever they killed at the Dari Mart.

Hayward also argued that the death metal music evidence and satanism should have been excluded under OEC 404(3). The appellate court stated a three-part test governed the analysis under OEC 404(3): was the evidence independently relevant for a noncharacter purpose; was there sufficient proof that the conduct occurred; and did the probative value of the conduct outweigh the danger of unfair prejudice under OEC 403, citing Hampton.

Hayward contended that listening to death metal music and believing in satanism were "acts" under OEC 404(3), and he argued the evidence did not come within exceptions to OEC 404(3), and that the evidence could have led the jury to convict Hayward because he was a "bad person."

The appellate court concluded that, even assuming for analysis that listening to death metal music and believing in satanism were "acts" under OEC 404(3), the trial court did not err in admitting the evidence because it was relevant to motive and was not unfairly prejudicial in context.

Hayward also argued that the trial court erred in denying his motion for a mistrial based on his contention that evidence of death metal music should not have been admitted.

The appellate court concluded the motion was not timely because Hayward did not move for a mistrial until after the state had rested its case, and thus the motion was not preserved.

The appellate court noted the requirement that a motion for mistrial be made timely to be preserved, and stated that a motion for mistrial "is timely if it is made when the allegedly objectionable statement was made."

The appellate court concluded that Hayward could not prevail on those assignments of error.

Jury instruction on coexisting intents

Hayward assigned error to the jury instruction the trial court gave over his objection: "A person often acts with two or more coexisting intents. If the state proves to your satisfaction beyond a reasonable doubt that the defendant acted with a particular criminal intent as to one count of the indictment, it is possible that you may find that the defendant had one or more other coexisting intents which were also reasons for that behavior."

At trial, Hayward argued the instruction was "a comment on the evidence and it's an inappropriate instruction[], something that['s] subject to argument but not to instruction."

On appeal, Hayward contended the instruction should not have been given because it was a comment on the evidence, impermissibly instructed on an inference that could have been drawn against Hayward from the evidence, and "confusing and may have led the jury to conclude that the state had proven that defendant acted with criminal intent but on an improper basis."

The appellate court addressed only the preserved argument that the instruction on coexisting intents was a comment on the evidence.

The appellate court explained that it is well established that a trial court is not permitted to comment on the evidence.

The appellate court concluded the instruction did not tell the jury how specific evidence related to a particular legal issue and did not shift the state's burden. The appellate court concluded the trial court did not err in giving the coexisting intents jury instruction.

The appellate court concluded it found no error and affirmed the judgment of conviction.

Penalty-phase assignments of error

Victim impact evidence

Hayward assigned error to the trial court's denial of his motion, made at the beginning of the penalty phase, that the state not be allowed to introduce victim impact evidence.

The appellate court discussed the 1995 Legislature amendments to ORS 163.150(1)(a). The appellate court reproduced the statutory text in part: "In the proceeding, evidence may be presented as to any matter that the court deems relevant to sentence including, but not limited to, victim impact evidence relating to the personal characteristics of the victim or the impact of the crime on the victim's family and any aggravating or mitigating evidence relevant to the issue in paragraph (b)(D) of this subsection; however, neither the state nor the defendant shall be allowed to introduce repetitive evidence that has previously been offered and received during the trial on the issue of guilt."

The appellate court stated that opening statements in the guilt phase began on November 15.

During the guilt phase, the state introduced a photograph of Frances Wall that was taken while she was alive. The state called David Wall to lay a foundation for the photograph. Before asking David Wall to identify the person in the photograph, the prosecutor asked David Wall if Frances Wall was his wife. David Wall responded that she was. Hayward did not object to that evidence, and the court properly received it into the record.

At the beginning of the penalty phase, Hayward made a general objection to the introduction of any victim impact evidence. He argued under State v. Guzek that such evidence was inadmissible because it was irrelevant, and he also argued that allowing victim impact evidence pursuant to the 1995 amendment violated ex post facto provisions of the Oregon and United States Constitutions.

The trial court overruled the objection.

During the penalty phase, David Wall testified that he and Frances Wall were the parents of two children and that Frances Wall had worked at the Dari Mart for almost five years. Wall also described telling their son that the boy's mother was dead and described the boy's reaction to that news.

The appellate court concluded that, apart from Hayward's general objection to the introduction of victim impact evidence at the beginning of the penalty phase, he did not make a specific objection to any of Wall's testimony.

On review, Hayward argued that the trial court erred in allowing David Wall to give victim impact testimony during the penalty phase pursuant to ORS 163.150(1)(a) (1995), because retroactive application of the 1995 version violated ex post facto prohibitions.

The state responded that Hayward failed to preserve his ex post facto argument because the state introduced victim impact evidence during the guilt phase.

The appellate court discussed preservation and cited Brown and Sproul v. Fossi, including the quoted passage: "'It is well established that when evidence is offered as a whole and an objection is made to the evidence as a whole and is overruled, the trial court will ordinarily not be reversed on appeal if any portion of the offered evidence was properly admissible, despite the fact that other portions would not have been admissible had proper objections been made to such portions of the offered evidence.' Sproul v. Fossi , 274 Or 749, 755, 548 P2d 970 (1976) (citations omitted)."

The appellate court concluded that David Wall's guilt-phase testimony that Frances Wall was his wife provided a foundation for identification of the photograph, and that under ORS 163.150(1)(a) (1995) it also was victim impact evidence. The appellate court concluded the state was entitled to have the jury consider it during the penalty phase, and that Hayward's generic objection at the beginning of the penalty phase was insufficient to preserve his ex post facto argument because the record already included victim impact evidence. The appellate court therefore did not consider the merits of that argument.

Constitutionality of the death penalty

Hayward assigned error to the trial court's rejection of his contention that Oregon's statutory death penalty scheme was unconstitutional.

Hayward conceded that his challenges had been rejected by this court in previous death penalty appeals.

The appellate court stated: "That concession is well taken. See Moore , 324 Or at 429 n 19 (declining to discuss such challenges because it would not benefit bench or bar in light of previous holdings)."

The appellate court affirmed the sentence of death.

Outcome

The judgment of conviction and the sentence of death were affirmed.

Other details

Hayward was convicted in a case involving Wall's murder and the assault on Ream, and the penalty phase included Hayward's testimony about reading the bible in prison and his beliefs about God.