Matthew Thompson

Case record: State v. Matthew Thompson

Background

Matthew Thompson was convicted of aggravated murder, murder, felony murder, and related crimes in connection with killings at the Driftwood Tavern in Portland and a later fatal stabbing of another man. He was sentenced to death.

The offence

Events at the Driftwood Tavern (late hours of November 18, 1994)

About 10:30 p.m. on November 18, 1994, Andrew McDonald and his wife, Debra Oyamada, were at the Driftwood Tavern in Portland. Matthew Thompson and his companion, Paul Whitcher, entered the tavern and ordered a pitcher of beer. Oyamada was sitting at a video poker machine, and McDonald was sitting at the bar. Thompson was wearing a plaid shirt.

Thompson and Whitcher approached Oyamada. Thompson asked Oyamada if she was from “the 'samurai family'” or “from samurai blood.” Oyamada responded, “As a matter of fact, yes, I am.” Thompson continued, but Oyamada said she did not want to talk. Oyamada turned her back to Thompson because she thought those were “weird questions” and that Thompson was “overbearing.” Thompson persisted, saying, “I need to know about it. I'm a warrior and I want to know about this.” Oyamada replied that she did not want to talk about it.

Thompson then sat next to Oyamada. Oyamada said, “You're sitting in someone else's seat.” After that, Thompson got up from the seat and started to walk toward the door. As they walked, McDonald approached Thompson and Whitcher and said, “Please leave her alone, she doesn't want to talk about it.”

Pat Disciascio, the bartender, became concerned and directed Thompson and Whitcher to leave the tavern. When Thompson and Whitcher did not leave immediately, Disciascio said “Good night, you guys,” and pointed toward the door.

As Thompson and Whitcher left the tavern, one of the two men said, “I feel like killing somebody tonight.” Thompson and Whitcher then stood outside. Thompson said to Whitcher, “I'm going to go back in there and kick that guy's ass.” Thompson stated to Whitcher, “If we do this, you know, we're going to jail.”

Between five and ten minutes after leaving, Thompson ran into the tavern alone, grabbed McDonald from behind, began striking him, and dragged him outside. Oyamada tried to pry Thompson off of McDonald. Thompson then turned on Oyamada, hitting her in the head, throwing her to the ground, and stabbing her in the head and neck.

Bill Jones, another tavern patron, grabbed Thompson. Thompson stabbed Jones six times. Thompson then ran away.

Ambulances took McDonald, Oyamada, and Jones to the hospital. McDonald died as a result of his wounds.

Events after the tavern (about 1:30 a.m. on November 19, 1994)

Thompson and Whitcher went to Thompson’s grandmother’s home, where Thompson lived. Thompson introduced Whitcher to his grandmother, then she went to her room to sleep.

About 1:30 a.m. that night, Thompson’s grandmother awoke and went downstairs because she heard a lot of noise. She saw Whitcher cleaning up broken glass and Thompson cleaning grape juice off the rug. She asked Whitcher to leave.

Thompson told Whitcher he was going to see that Whitcher got home safely, and the two men left the house. When Thompson returned shortly, his grandmother was still cleaning grape juice. Thompson said he would clean the grape juice and told his grandmother to go to bed, which she did. Before she fell asleep, she heard the washing machine running.

About 1:30 a.m. that night, Sally Woolley called “911” to report that she heard loud, angry, male voices outside her home. Woolley reported that a man was lying face down in the street. Another man, wearing a plaid shirt, was kneeling over him and rolled him partially onto his side. The man in the plaid shirt rummaged through the other man's pockets, then ran away.

The police arrived. The man on the street was identified as Whitcher. He had been stabbed sixteen to twenty times and was dead. One pocket had been turned inside out.

Police contact and search activity (about 2:00 a.m. on November 19, 1994; later searches)

About 2:00 a.m. that night, the police found Thompson walking nearby. He smelled of alcohol and was nervous and evasive. His shoes were untied and, although it was a cold night, he was sockless. One eye was swollen. The police thought Thompson might have witnessed Whitcher’s stabbing and questioned him.

After denying that he had been in an altercation, Thompson stated that he lived nearby with his grandmother, but gave the police his mother’s address. Thompson denied ever having been arrested or being on probation. After a record check indicated that he had been arrested and that currently he was on probation, Thompson was taken into custody.

The police first contacted Thompson’s mother, who stated that Thompson did not live with her. She gave the police Thompson’s grandmother’s address. The police contacted Thompson’s grandmother at her home. She invited the officers into her home and gave them permission to look around.

Thompson’s grandmother then led them to the washing machine in the basement and opened the lid. Blood was smeared on the outside of the machine. The washed clothing in the machine had stains consistent with blood. The grandmother told police that the clothing in the machine was Thompson’s.

The state’s criminologist concluded that the DNA recovered from the top of the washing machine, and from jeans, a shoelace, and a sock found in the washing machine, was consistent with Whitcher’s.

At 12:30 p.m. on November 19, 1994, detectives returned to Thompson’s grandmother’s home with a search warrant. After finding no weapons, the police left. The detectives returned around 5:00 p.m. that day. With Thompson’s grandmother’s consent, the detectives searched her basement.

A detective found a bloody knife on a cross-beam and a blood-smeared wallet inside a wood stove. The knife was consistent with Thompson’s grandmother’s description of a knife Thompson owned. The state’s criminalist concluded that the blood on the knife and wallet matched Whitcher’s blood type.

Investigation

Investigators questioned Thompson after police found him walking nearby following the fatal stabbing of Whitcher. The investigation included a washing machine inspection at Thompson’s grandmother’s home and later searches of the basement. DNA findings were reported as consistent with Whitcher.

Trial

Charges and plea

Thompson was charged in a 22-count indictment with the murders of Andrew McDonald and Paul Whitcher and with related crimes. The first 14 counts charged crimes that occurred at the Driftwood Tavern in the late hours of November 18, 1994. The remaining counts charged crimes that occurred in the early morning hours of November 19, 1994. Thompson pled not guilty to all charges.

Convictions

After a jury trial, Thompson was convicted of aggravated murder (4 counts), murder (2 counts), felony murder (2 counts), first-degree robbery, first-degree burglary (2 counts), and first-degree assault (2 counts).

Claims of error

Thompson assigned nine claims of error relating to the guilt phase and five claims relating to the penalty phase of his trial. He also contended that Oregon’s death penalty statute violated the Oregon and United States constitutions.

Guilt-phase proceedings

Pretrial motions

Denial of pro se motion for substitution of counsel

Before trial, Thompson informed the trial court that his counsel was “not working out.” He complained that he had not yet received all police reports, his counsel took two to three weeks to return some phone calls, his counsel should have attempted to “lower” the indictment, and that he had filed an action against his counsel under 42 USC § 1983.

After permitting Thompson to explain his reasons for moving to substitute counsel, the trial court denied his motion. The court explained that Thompson was being well represented by qualified attorneys and that he had not given the court sufficient grounds to change his counsel.

Later, Thompson filed a pro se motion for substitution of counsel again. The court asked him to explain his complaints. He asserted that there was “no harmony” between him and his attorneys. The court stated:

"As you might recall, you and I have discussed this question on several occasions and on a couple of occasions I've gone over your complaints item by item and found them not to be a legal basis to grant your request. "Since I see nothing new, my ruling that I made in the past will stand and that is your motion for change of counsel is denied."

The appellate court reviewed the denial of substitution as an abuse-of-discretion issue and held there was no abuse of discretion.

Denial of motion to sever counts related to separate homicides

Before trial, Thompson moved to sever the first 14 counts of the indictment. He argued the statutory requirements for joinder of the charges were not met and that he would suffer substantial prejudice if the counts were not severed.

The trial court reasoned, including its explanation of ORS 132.560, that the allegations met both tests: they were connected violent crimes of the same or similar character and were part of the same act or transaction, with evidence in one case admissible in the other, such that it would be difficult to understand the evidence in one without hearing the evidence in the other. The trial court denied the motion to sever.

On review, the appellate court held the trial court did not err by denying severance.

Trial motions

Admission of evidence about denials to police

Thompson argued the trial court erred in overruling his objection to evidence that when he was first contacted by police he denied that he had previously been arrested or was on probation.

The defense theory of intoxication was that Thompson was too intoxicated to act voluntarily or to form the intent necessary to commit the charged acts. During trial, the prosecutor informed the court the state intended to introduce evidence of Thompson’s denials as relevant to whether he was not so intoxicated that he could not form criminal intent.

The prosecutor argued:

"[I]t is the State's position that it shows that the defendant was able to process the information that he was able to in fact lie about it to try and protect himself and to get out of the clutches of the police, and it is therefore relevant."

Defense counsel objected under OEC 403 as “unduly prejudicial.” The trial court overruled the objection and allowed the state to introduce the denials, but ruled that no details about the arrests or probation would be admitted.

On review, the appellate court held there was no abuse of discretion.

Motions for judgments of acquittal on Counts 1, 5, 10, and 11

Thompson argued the trial court erred in denying motions for judgments of acquittal on Counts 1, 5, 10, and 11.

• Count 1 charged aggravated felony murder for intentionally murdering McDonald in the course and furtherance of attempting to commit and committing first-degree burglary at the Driftwood Tavern.
• Count 5 charged felony murder with first-degree burglary at the tavern as the underlying felony.
• Count 10 charged first degree burglary with intent to assault McDonald.
• Count 11 alleged first-degree burglary by unlawfully and knowingly entering and remaining in the tavern with a dangerous weapon with intent to assault McDonald.

All four counts were premised on the state’s theory that the bartender excluded Thompson from the tavern before Thompson reentered and attacked McDonald.

After the state’s case-in-chief, defense counsel moved for a judgment of acquittal on all counts. As to the burglary counts, counsel argued that the state presented insufficient evidence that the bartender had excluded Thompson and that no burglary had been committed as a matter of law.

The trial court ruled:

"[W]hat I'm going to rule is that it's a fact question as far as whether there was an exclusion or simply a salutation. I paid very close attention to what everybody said about voice inflection, and particularly the bartender, and he clearly said that it was his attention [ sic ] to exclude them but that he didn't use those words. He thought that they knew that they couldn't come back. Because I originally had some real question when I heard the words used and heard Ms. Oyamada's recitation of that. But I'm going to submit that fact question. So I deny your special motion on that basis."

On review, the appellate court recited evidence from Oyamada, Bill Jones, John Earp, and Pat Disciascio and held that a rational jury could find the bartender intended to and did exclude Thompson and Whitcher at least for the remainder of that evening and that a reasonable person would understand the bartender’s words and conduct as an exclusion for at least five to ten minutes.

Thompson also argued he was not barred by a fixed time to re-enter. The appellate court held the trial court did not err in denying the motions for judgments of acquittal on Counts 1, 5, 10, and 11.

Jury reinstruction during deliberations

Thompson argued the trial court erred by instructing the jury during deliberations on definitions of “entering and remaining unlawfully” and on who had authority to exercise lawful control of the tavern premises.

The state requested Uniform Criminal Jury Instructions defining “enter or remain unlawfully” and “person in charge.” The trial court inadvertently neglected to instruct the jury on those definitions. After retiring to deliberate, the jury sent a note:

"What constitutes being asked to leave a bar and what authority does the bartender have? What does he have to 'do or say -- legally' to kick someone out."

Over Thompson’s objection, the court provided written copies of the Uniform Criminal Jury Instructions defining those phrases.

The appellate court reviewed the reinstruction for abuse of discretion and held the timing did not prejudice Thompson when considered with the instructions as a whole and did not create an erroneous impression of the law.

Verdict acceptance on Counts 15 and 22

Thompson contended the trial court erred by accepting verdicts on Counts 15 and 22.

• Count 15 alleged Thompson unlawfully and intentionally attempted to commit first-degree robbery and that, in the course of and in furtherance of the robbery he was committing and attempting, he personally and intentionally caused the death of Paul R Whitcher “by stabbing him[.]”
• Count 22 alleged Thompson unlawfully and knowingly used physical force upon Paul R Whitcher and used a dangerous weapon, “to-wit: a knife,” while in the course of committing and attempting to commit theft of property, “to-wit: a wallet,” with the intent of preventing and overcoming resistance to the taking.

The jury returned guilty verdicts on both counts. When the jurors were polled, all 12 had voted “guilty” on Count 15, but one juror indicated she had voted “not guilty” on Count 22 (robbery). Thompson argued the verdicts were “logically inconsistent.”

The appellate court held the verdicts were not logically inconsistent because aggravated felony murder based on first-degree robbery does not require that the jury find the robbery was completed, since ORS 163.115(1)(b) allows a conviction when the murder is committed in the course of or in furtherance of attempting to commit a listed felony.

The appellate court held the trial court did not err in accepting the verdicts.

Penalty-phase proceedings

Admission of juvenile court records

Before trial, the court sealed a file containing Thompson’s juvenile court records and social history. After convictions, the state sought release of those materials for use during penalty-phase proceedings. Thompson objected, contending the materials were privileged under ORS 419A.255.

The trial court ruled:

"And I'm going to release, having reviewed the entire juvenile [file] and finding that everything in it could arguably be relevant or to lead [to] relevant information and admissible information in this case, I'm going to release it to both sides. "* * * * * "So far as any documents might be received into evidence , we'll make a document by document decision as to whether those should be sealed at the conclusion of the trial ." (Emphasis added.)

On review, Thompson argued the admission violated due process under the Fifth and Fourteenth Amendments. The appellate court held the error was not preserved because Thompson did not object at trial to the admission of any evidence that might have been derived from the juvenile court records.

Admission of state's Exhibit 85 (letter)

Thompson objected to admitting state’s Exhibit 85, a letter written by Thompson. The letter described Thompson’s plan to “hit [a guard] in the gut a few times * * * 'til he went out or stopped moving” and then to “break window [ sic ]” and escape from jail.

The trial court overruled the objection, stating:

"I have to feel that on this issue of the death sentence it certainly is much more probative than prejudicial. It goes to the issue of future dangerousness which is one -- directly, which is the one of the questions that will be put to the jury, and I have to deny the objection."

The appellate court concluded the letter was probative of future dangerousness and held there was no abuse of discretion in admitting it.

Motion for mistrial based on reference to alleged sex abuse

During the penalty phase, an intake worker from the State Office for Services to Children and Families stated that in 1985 her office had difficulty providing residential placement services for Thompson because of “an allegation of a sex abuse issue.”

Thompson moved for a mistrial. The trial court denied the motion and instructed the jury to disregard the statement completely, because there was “nothing to sustain any allegation of sex abuse against” Thompson and the reference was “unfortunate.”

Thompson renewed his motion for a mistrial during the next recess. The trial court again denied it, concluding its instructions allayed any prejudice. The appellate court reviewed the denial for abuse of discretion and held there was no showing of prejudice and no abuse of discretion.

Motion to strike prosecutor’s penalty-phase rebuttal argument

Thompson testified during the penalty-phase. His testimony included:

"Let me start by -- when I was first arrested, I talked to [defense counsel] and I told her that I just wanted to plead guilty. * * * I did not want a trial. That man wanted the trial. "* * * * * "A lot of things in this case were manipulated and promoted and pumped up. The families, they were told a lot of lies by that man for political gain or personal, I don't know. If there would have been some kind of reasonable charges or reasonable plea, something I could legally plead guilty to and get this all over with, I would have * * *."

In the prosecutor’s penalty-phase rebuttal argument, the prosecutor stated:

"As to his personal attacks against me, I want you to think about this, I want you to consider them, I want you to use your opportunity to consider them in assessing the probability for his committing violent acts in the future."

Defense counsel moved to strike the statement as improper. The trial court denied the motion. The appellate court reviewed for abuse of discretion and held there was no abuse of discretion in denying the motion to strike.

Demurrer challenging constitutionality of death-penalty scheme

Thompson contended the trial court erred in overruling his demurrer attacking the constitutionality of Oregon’s death-penalty scheme. The appellate court noted Thompson recognized prior rejections of similar challenges and declined to reconsider those issues, holding there was no error in overruling the demurrer.

Outcome

The Oregon Supreme Court affirmed the judgment of conviction and the sentence of death. The court conducted automatic and direct review. The justices included Chief Justice Carson and Justices Gillette, Van Hoomissen, Durham, Leeson, and Riggs; Van Hoomissen, J., authored the decision, and Kulongoski, J., did not participate in the consideration or decision.

Other details

Jury findings and trial structure

Thompson was convicted after a jury trial and was sentenced to death after a penalty phase proceeding.

Trial and appellate timing references

The Oregon Supreme Court opinion described the case as “automatic and direct review” and indicated oral argument and submission occurred September 10, 1998. The appellate court referenced ORS 163.150(1)(g) and ORAP 12.10(1).