364 P.3d 971
Or.2015Background
- In 2008 at the Oregon State Penitentiary, Agee and his cellmate Davenport attacked and killed another inmate; Davenport wielded a concrete block that caused the fatal blows; Agee carried a shank and assaulted the victim. Both were charged with aggravated murder; the state sought death for both.
- Davenport presented evidence of lifelong cognitive impairment; the state conceded Davenport was intellectually disabled and he pled guilty and received life. Agee sought a pretrial Atkins hearing asserting intellectual disability; the trial court held an Atkins hearing and found Agee not intellectually disabled; Agee was tried, convicted of aggravated murder, and the jury imposed death.
- Before the jury was sworn, the trial court permitted a pretrial, in‑court examination of inmate witnesses (including Davenport) to test whether they would invoke the Fifth; the prosecutor extensively questioned Davenport about the murder outside the jury’s presence.
- At the Atkins hearing experts disputed diagnostic standards: Agee’s IQ scores (~82–84) were above the traditional two‑SD cutoff but his adaptive functioning and fetal‑alcohol injury indicated severe deficits; the trial court relied on then‑prevailing standards emphasizing IQ and denied Atkins relief.
- During the penalty phase the court excluded (1) testimony from Agee’s experts that they had diagnosed him as intellectually disabled and (2) evidence that Davenport received a life sentence. Agee appealed; the Oregon Supreme Court affirmed conviction but vacated the death sentence and remanded.
Issues
| Issue | Plaintiff's Argument (State) | Defendant's Argument (Agee) | Held |
|---|---|---|---|
| Whether the court erred by allowing extensive pre‑jury cross‑examination of Davenport outside the jury (pretrial hearing) | Court may manage proceedings; questioning to test willingness to testify was permissible. | That questioning exceeded purpose (inquiry whether witness will testify) and functioned as an unlawful pretrial deposition of a defense witness. | Error to permit extensive substantive questioning about the murder outside the jury, but error was harmless. Conviction affirmed. |
| Whether the trial court applied proper standard at Atkins hearing to decide intellectual disability | IQ threshold and consensus then supported treating ~70 as required; court applied contemporary standards. | DSM‑5 and modern practice emphasize clinical judgment and adaptive functioning; trial court relied on outdated emphasis on numeric IQ cutoff. | Trial court’s legal standard was outdated in light of DSM‑5 and Hall; remand for a new Atkins hearing applying current standards. |
| Whether trial court erred by excluding defense experts’ testimony that they diagnosed Agee as intellectually disabled during penalty phase | The court already ruled Agee not intellectually disabled; expert opinions on the legal ultimate issue were barred; substantive evidence of deficits was permitted. | Experts’ diagnoses are relevant mitigating evidence under ORS 163.150 and Eighth Amendment and must be admitted. | Excluding experts’ diagnosis testimony was error; the diagnosis evidence was relevant mitigating evidence and the error was not harmless. Death sentence vacated. |
| Whether the jury must be instructed to decide whether defendant is intellectually disabled (and that a finding precludes death) | The absence of disability is not an element the State must prove; Atkins eligibility is a legal determination for the court; no constitutional requirement to submit legal eligibility to the jury. | Jury should be able to decide and be instructed that a finding of intellectual disability precludes death (Eighth and Sixth Amendment concerns). | Neither the Sixth nor Eighth Amendment requires a jury instruction to decide legal Atkins eligibility; court may make that legal determination. No reversal on this ground. |
| Whether the court erred in excluding evidence that Davenport received a life sentence | Co‑defendant’s sentence is irrelevant to defendant’s individualized sentencing and may confuse jurors. | Evidence that an equally or more culpable codefendant received life is relevant mitigation: it bears on circumstances of offense and moral culpability. | Excluding Davenport’s life sentence was error; such evidence is relevant mitigating evidence under ORS 163.150 and must be admitted on remand. |
Key Cases Cited
- Atkins v. Virginia, 536 U.S. 304 (2002) (Eighth Amendment bars execution of intellectually disabled offenders)
- Hall v. Florida, 572 U.S. 701 (2014) (mandatory IQ cutoffs that preclude consideration of adaptive‑functioning evidence are unconstitutional)
- Apprendi v. New Jersey, 530 U.S. 466 (2000) (facts that increase maximum penalty must be submitted to jury)
- Ring v. Arizona, 536 U.S. 584 (2002) (aggravating factors making defendant death‑eligible must be found by jury)
- Penry v. Lynaugh, 492 U.S. 302 (1989) (sentencer must be allowed to consider mitigating evidence, including mental capacity)
- Bobby v. Bies, 556 U.S. 825 (2009) (distinguishing Atkins eligibility issue from intellectual disability as a mitigator)