STATE OF OREGON, Plaintiff-Respondent, v. ISACC CREED AGEE, Defendant-Appellant.
(CC 09C41224; SC S059530)
STATE OF OREGON
March 10, 2016
January 4, 2016
364 P3d 971
BALMER, C. J.
Argued and submitted on April 22, judgment of conviction affirmed, sentence of death vacated, and case remanded to circuit court for further proceedings December 3, 2015, appellant‘s petition for reconsideration filed January 4, allowed by opinion March 10, 2016 See 358 Or 749, 370 P3d 476 (2016)
Timothy A. Sylwester, Attorney General, Salem, argued the cause and filed the brief for respondent. With him on the brief were Ellen F. Rosenblum, Attorney General, Anna M. Joyce, Solicitor General, and Susan G. Howe and Michael S. Shin, Assistant Attorneys General.
BALMER, C. J.
BALMER, C. J.
This case is before us on automatic and direct review of defendant‘s judgment of conviction and sentence of death for aggravated murder.
I. BACKGROUND
We begin with an overview of relevant facts; we describe additional facts in our discussion of defendant‘s assignments of error. Because the jury found defendant guilty, we view the evidence presented at trial in the light most favorable to the state. State v. Washington, 355 Or 612, 614, 330 P3d 596 (2014).
In May 2005, defendant arrived at the Oregon State Penitentiary to begin serving a 40-year sentence for attempted murder and other offenses. In February 2008, defendant and his cell-mate, Davenport, entered the cell of a third inmate, the victim, when the doors to all the cells in the area were opened to permit the inmates to go to breakfast. Both defendant and Davenport were wearing gloves and were armed. Defendant had a seven-inch-long shank with a half-inch piece of sharpened metal on the end, sheathed in the plastic casing of a highlighter pen. Davenport was carrying a mesh laundry bag containing an almost four-pound piece of concrete wrapped in a stocking cap. The door to the cell closed after about 30 seconds, locking defendant and Davenport in the cell with the victim. Davenport began striking the victim in the head with the concrete block. Defendant stabbed the victim in the legs and torso 28 times with the shank.
A corrections officer heard panting and investigated. He saw two inmates standing in the cell, out of breath, and another on the ground; he yelled to another corrections officer for help. The two corrections officers saw Davenport standing in the back of the cell near the victim‘s head and defendant standing to the side of the cell, near the victim‘s torso and legs and next to a table in the cell. While the officers waited for other guards to arrive (to enable them safely to open the cell door), they saw Davenport strike the victim in the head about 20 times with the concrete block, and saw defendant kick the victim in the ribs and punch him in the chest with a closed fist. Defendant walked to the cell door and submitted to wrist restraints as Davenport continued to strike the victim‘s head with the concrete block. Davenport also eventually submitted to restraints. Officers removed Davenport and defendant from the cell and a nurse confirmed that the victim was dead. While defendant was being escorted from the scene, a corrections officer asked him whether he was in possession of any weapons. Defendant responded no, he had left his weapon on the table in the cell. The shank was later found on the table. According to the state medical examiner, the victim died from the blows to the head with the concrete block. The shank caused only superficial wounds.
Defendant and Davenport were jointly charged with aggravated murder for the intentional homicide of a prison inmate by another inmate.
Defendant also moved the trial court to declare him intellectually disabled and ineligible for the death penalty, but the state did not concede the issue as to him. Because, as we discuss in more detail below, there are no specific procedural or substantive guidelines in Oregon for determining when a defendant is ineligible for the death penalty under the general holdings of Atkins, the trial court determined that it would conduct a pretrial hearing at which defendant would have the burden of proving that he is intellectually disabled by a preponderance of the evidence. Defendant acceded to that procedure.2
In an April 2011 hearing, both the state and defendant offered evidence from psychologists and psychiatrists concerning defendant‘s mental health and intellectual abilities. The trial court found that defendant suffered from partial fetal alcohol syndrome but concluded that defendant had not established an intellectual disability that would make him constitutionally ineligible for the death penalty. In May 2011, a jury was empanelled and, after a guilt-phase trial, the jury found defendant guilty of aggravated murder. At the conclusion of a further, penalty-phase proceeding under
II. ASSIGNMENTS OF ERROR
On review before this court, defendant raises 29 assignments of error. We have reviewed all those assignments of error and conclude that many of them are not well taken and do not merit further discussion.3 We address defendant‘s remaining assignments of error below.
We discuss five assignments of error. Only one assignment of error concerns a ruling made during the guilt phase; we begin there.
A. The Trial Court‘s Decision to Permit Extensive Cross-Examination of Codefendant Outside Presence of Jury
At defendant‘s trial, after the completion of jury selection but prior to the jury being sworn, the trial court and both parties called to the stand eight inmates for the limited purpose of inquiring whether the inmates intended to invoke their privileges against self-incrimination if called as witnesses in front of the jury. One of those witnesses was Davenport. The trial court swore in Davenport and defendant conducted a limited examination about whether Davenport was willing to testify about the events on the day that the victim was killed and Davenport‘s involvement with a particular
On cross-examination, after confirming that Davenport would testify about the events of the day of the murder, the prosecutor asked whether Davenport was prepared to testify about what happened during the week before the murder. Davenport initially responded that nothing had happened the week before. The prosecutor then asked Davenport if he was a “gangster.” Davenport replied that he would not answer that question, but would testify about his involvement in the murder and exactly what happened that day. The prosecutor told Davenport that he was required to answer any question that was put to him and again asked whether Davenport was a gangster. Davenport continued to refuse to answer that question, and defense counsel began to object. The prosecutor interrupted the defense objection to complain to the judge that, if Davenport were not willing to answer the prosecutor‘s questions, he should not be allowed to testify at the trial at all. The court then conducted a colloquy with Davenport in which Davenport agreed to answer questions from both parties if he were called as a witness. The court directed the prosecutor to ask again about Davenport‘s gang involvement, to “test” Davenport‘s willingness to cooperate. The prosecutor posed multiple questions about Davenport‘s gang membership, his gang tattoos, his relationship with various gang members, his knowledge of the gang‘s power structure, and the role of the gang in the murder. During that questioning, Davenport at first attempted to avoid giving direct, truthful answers, even though the court reminded him several times that this was a “test run” to determine if he would cooperate with cross-examination. Davenport eventually began to answer the prosecutor‘s questions, although he frequently answered, “I don‘t know.” From there, the prosecutor moved on to questions about Davenport‘s relationship with defendant, which Davenport answered directly.
The prosecutor then began asking Davenport specific and detailed questions about his and defendant‘s actions on the day of the murder:
“[PROSECUTOR]: And on the 14th, you keep saying that you‘re the one that did the killing.
“[DAVENPORT]: Yes, I did.
“[PROSECTUTOR]: What weapons did you use?
“[DAVENPORT]: I used a knife and a chunk of cement.
“[PROSECUTOR]: Okay. Where was the defendant?”
Defendant objected for a second time, arguing that Davenport had made clear that he would answer questions about the day of the murder. The trial court overruled the objection and allowed the prosecutor to continue examining Davenport. The prosecutor resumed asking Davenport questions about his and defendant‘s actions during the murder, including asking leading questions to draw out a moment-by-moment description of defendant‘s and Davenport‘s actions and statements leading up to and during the assault on the victim, and including eliciting testimony about how Davenport coerced defendant into entering the victim‘s cell.
Defense counsel raised a third objection, noting that the purpose of the hearing was limited to an inquiry about whether the inmate witnesses would be invoking their Fifth Amendment right not to testify. Defendant conceded that the prosecutor had had reason to ensure that Davenport would testify about his gang involvement and who ordered the
Defendant argues in this court that, generally, trial courts do not have authority to compel a criminal witness to be deposed or give pretrial testimony outside the presence of the jury. See State ex rel O‘Leary v. Lowe, 307 Or 395, 401-02, 769 P2d 188 (1989) (issuing writ of mandamus directing trial court to withdraw order requiring prosecutor to produce some of state‘s criminal witnesses for pretrial deposition by defendant, holding that “[t]here is no statutory right in Oregon for a criminal defendant to depose a potential state‘s witness“). Although O‘Leary involved a defendant‘s effort to compel pretrial testimony from a state witness, defendant argues that the same rule would apply to the prosecution. Defendant acknowledges the trial court‘s authority to permit examination of a witness outside the presence of the jury for purposes of trial management, but he argues that, under O‘Leary, trial courts have no authority to compel a defendant or a witness in a criminal trial to submit to pretrial depositions. Defendant contends that the holding in O‘Leary is consistent with
Trial courts have explicit and inherent authority to control courtroom proceedings. See State v. Mains, 295 Or 640, 656, 669 P2d 1112 (1983) (so stating);
However, although the trial court‘s discretion is broad, it is limited by the rules governing the conduct of the trial. In a criminal prosecution, the trial court may not permit either party to conduct pretrial examination of witnesses except in certain limited circumstances. For example, the statutes governing pretrial discovery in criminal matters do not permit either the defendant or the state to take pretrial depositions.
As noted, after the jury was selected in this case but before it was sworn, the trial court conducted a hearing, the stated purpose of which was to determine whether certain witnesses would testify at trial. It is indisputable that it was within the trial court‘s discretion to determine, at that point, whether the witnesses would testify, including whether the witnesses would respond to questions from both defense counsel and the prosecutor, and to do so by permitting the prosecutor to question the witnesses. Although the trial court later would have the option of excluding some or all of a witness‘s testimony if the witness refused to answer the prosecutor‘s questions at trial, Cox, 337 Or at 493, the court reasonably could have concluded that permitting the prosecutor to question the witness at the hearing to test the witness‘s compliance was preferable to that course of action. However, with respect to Davenport, the trial court went well beyond simply determining whether the witness would testify. Before the prosecutor started to question Davenport about the events surrounding the murder, Davenport had stated under oath that he would testify about those events, and he had amply demonstrated that he would answer the prosecutor‘s questions.
It is true that Davenport initially resisted answering questions about his relationship with a certain prison gang, but he did eventually answer all of the prosecutor‘s questions on that topic, and he had appropriately answered questions about his relationship with defendant. At the point when defense counsel interposed his second objection to the prosecutor‘s questions, Davenport also had answered several questions about the murder itself. At that point, requiring Davenport to answer questions from the prosecutor that essentially revealed the entirety of Davenport‘s substantive testimony about defendant‘s participation in the murder exceeded the legitimate purpose of the hearing. The prosecutor‘s continued questioning of Davenport constituted, in essence, a pretrial deposition—the sort of discovery that is not permitted under the statutes governing pretrial discovery in criminal matters and that is prohibited by the requirement in
As this court has often explained, however, not all errors require reversal. An error is not a ground for a new trial if it is harmless—that is, if the court determines that there is little likelihood that it affected
We agree that Davenport‘s testimony was central to the defense case; his testimony, if believed, tended to exculpate defendant. However, we are not persuaded that the prosecutor‘s improper pretrial questioning of Davenport had a significant effect on Davenport‘s credibility at trial or was likely to have affected the verdict.
Defendant identifies no significant benefit that the prosecution gained at trial from improperly cross-examining Davenport during the pretrial hearing. With respect to the prosecution‘s use of Davenport‘s pretrial hearing testimony to decide which questions to ask him at trial, defendant argues only that the prosecutor “confidently used previewed *** testimony” about Davenport‘s relationship with and knowledge of the gang during extended questioning on that topic at trial and, in closing, repeatedly urged the jury to find that Davenport had lied in his responses to that questioning. However, as described above, the trial court did not err in permitting questioning about Davenport‘s gang involvement; rather, the error that we have identified relates to questioning that took place after that line of questioning concluded. It follows that defendant cannot rely on the prosecution‘s use of Davenport‘s pretrial testimony about his gang involvement for cross-examination purposes to support an argument that the trial court committed reversible error.
As for the prosecution‘s use of Davenport‘s pretrial hearing testimony for impeachment purposes at trial, defendant points to only one instance in which the prosecutor used Davenport‘s hearing testimony to undermine his credibility at trial. During cross-examination, the prosecutor pointed out that Davenport had testified at the pretrial hearing that defendant had had no knowledge of Davenport‘s plan to murder the victim and that defendant had done nothing to prepare himself before entering the victim‘s cell. But on direct examination at trial, Davenport testified that both he and defendant had donned gloves before entering the cell, which he conceded was a step in preparation for what was going to happen. The prosecutor focused on that inconsistency to undermine Davenport‘s testimony at trial. However, any damage to Davenport‘s credibility from the prosecutor‘s ability to draw attention to that one small discrepancy between Davenport‘s hearing testimony and his trial testimony is dwarfed by the fact that much of Davenport‘s trial testimony was contradicted or undermined by other evidence and testimony admitted independently of the prosecutor‘s use of Davenport‘s hearing testimony for impeachment purposes.
For instance, on direct examination by defendant, Davenport testified, among other things, that he goaded and threatened defendant into entering the victim‘s cell against his will; that Davenport and Davenport alone murdered the victim, using both the concrete block and the shank to inflict all of the injuries on the victim while defendant cowered and watched; and that defendant knew nothing about what would happen in the victim‘s cell other than that the victim had offended Davenport and Davenport wanted to teach the victim a lesson. That story was not plausible, and it was inconsistent with other testimony and evidence presented at trial. Specifically, it was undisputed that defendant entered the victim‘s cell wearing gloves and that he did not leave when Davenport began hitting the victim with the concrete block, even though the cell doors were still open at that time. Several corrections officers testified that they saw defendant punching and kicking the victim, and there was blood on defendant‘s gloves and shoes to support that testimony. And, when defendant was asked by a corrections officer after
Similarly, Davenport‘s testimony about his gang involvement was internally inconsistent and in conflict with the testimony of other witnesses. Davenport admitted that he had been a member of a gang for some time, that he had been the cellmate of two other gang members, and that he had known most of the other gang members for years. Additionally, another member of the gang testified about Davenport‘s participation in gang activities, including that Davenport had attended multiple meetings at which gang leaders talked about having the victim killed and that Davenport had volunteered to kill the victim. Nonetheless, at defendant‘s trial, Davenport consistently denied knowing anything about how the gang operated, its power structure, the nicknames or roles of any the gang‘s other members, or that its leaders wanted the victim murdered.
Because defendant has identified no specific testimony from the pretrial hearing that the prosecutor was able to use in cross-examining Davenport that was not also supported by other evidence, and because there were other inconsistencies in Davenport‘s testimony that called his credibility into question, we conclude that the prosecutor‘s improper cross-examination of Davenport at the pretrial hearing was not likely to have affected the verdict. We therefore hold that, although the trial court erred in permitting the prosecutor to examine Davenport extensively about the murder outside the presence of the jury, that error was harmless.
As previously noted, we have considered the other assignments of error that defendant claims arose during the guilt phase and found them to be without merit. Having found no reversible error during that phase of the trial, we affirm defendant‘s conviction for aggravated murder.
B. Trial Court‘s Ruling that Defendant Is Not Ineligible for the Death Penalty Due To Intellectual Disability
Three assignments of error relate in some way to defendant‘s contention that he is intellectually disabled. We begin by addressing defendant‘s argument that the trial court erred in denying, before trial, defendant‘s “Motion Number 20,” in which defendant moved the court for a ruling that he was ineligible for the death penalty because he was intellectually disabled.7
We discuss the law governing defendant‘s eligibility for the death penalty in detail below. To put the description of defendant‘s assignments of error in context, however, it is helpful at this point to explain that, in 2002, the United States Supreme Court held in Atkins that, in light of evolving standards of decency, the death penalty is excessive, cruel, and unusual under the Eighth Amendment to the United States Constitution when applied to intellectually disabled offenders.8 536 US at 321.
In 2010, when defendant moved the trial court to declare him ineligible for the death penalty because of his intellectual disability, Oregon had not yet developed a way to enforce the constitutional restriction against executing intellectually disabled offenders. Indeed, in the years since the Supreme Court decided Atkins, the Oregon legislature has not adopted any procedure for determining whether a person accused of aggravated murder has an intellectual disability and, therefore, ineligible for the death penalty. Nor has the issue been addressed by the Oregon appellate courts before today.9 Lacking such guidance, the trial court in this case invited suggestions from the parties about how to proceed and ultimately concluded that it would conduct a pretrial hearing, which we refer to as an Atkins hearing, during which both sides would present evidence
At the ensuing hearing, in April 2011, both defendant and the state offered evidence from psychiatrists and psychologists on defendant‘s intellectual functioning. The evidence at that hearing comprised expert testimony, written reports of experts, and documentary evidence of psychological and medical testing of defendant. The parties’ experts all generally agreed on the applicable criteria,10 defendant‘s scores on standardized tests, and most of defendant‘s diagnoses. They disagreed, however, about how to apply those criteria in evaluating defendant and about the significance of the standardized test scores in making the ultimate determination of whether defendant has an intellectual disability.
In 2011, the diagnostic criteria for intellectual disability, widely accepted and derived from the medical literature, amounted to a three-pronged inquiry into (1) the person‘s intellectual functioning, (2) the person‘s adaptive behavior (how the person functions in day-to-day life), and (3) whether the disability manifested before adulthood. That paradigm was reflected in the Fourth Edition (text revision) of the American Psychiatric Association‘s Diagnostic and Statistical Manual of Mental Disorders (4th ed - Text Revision 2000) (DSM-IV-TR), which defined “mental retardation” as a condition that meets the following three criteria:
“A. Significantly subaverage intellectual functioning: an IQ of approximately 70 or below on an individually administered IQ test ***.
“B. Concurrent deficits or impairments in present adaptive functioning *** in at least two of the following areas: communication, self-care, home living, social/interpersonal skills, use of community resources, self-direction, functional academic skills, work, leisure, health, and safety.
“C. The onset is before age 18 years.”
DSM-IV-TR at 49.11 Under the DSM-IV-TR, the severity of a person‘s mental retardation was measured by the person‘s IQ score. A person with an IQ score between about 50-55 and approximately 70 (two standard deviations below normal) was considered to be mildly mentally retarded and to have significantly subaverage intellectual functioning.12 Id.
The parties introduced evidence that defendant‘s IQ score was measured at 82 or 84 (depending on the test), which is in the borderline range.13 They also adduced evidence that defendant suffered from some kind of
Two state experts, Dr. Hulteng and Dr. Sebastian, testified at the Atkins hearing that the generally accepted practice in the field of psychology was that a person must have an IQ score of two standard deviations below the mean or lower (an IQ score of 70 or lower) to permit a diagnosis of intellectual disability, irrespective of the person‘s adaptive behavior. Dr. Hulteng testified that, in his opinion, a person with an IQ score of over 75 could never qualify as intellectually disabled. Specifically with respect to this case, Dr. Hulteng and Dr. Sebastian (who had acted as a consultant but did not personally examine defendant) testified that defendant‘s IQ scores were too high to establish the first prong in the diagnosis of mental retardation: “significantly subaverage intellectual functioning.”
Defendant‘s experts testified that an IQ above two standard deviations below the mean did not exclude an intellectual disability diagnosis. They relied on the American Association on Intellectual and Developmental Disabilities (AAIDD) Intellectual Disability: Definition, Classification, and Systems of Supports (11th ed 2010), which they referred to as the “Green Book” because of the color of its cover. According to defendant‘s experts, the AAIDD Green Book places more emphasis on a person‘s adaptive behavior in an intellectual disability diagnosis.16 One of defendant‘s experts, Dr. Greenspan, testified that IQ tests offer an incomplete picture of intelligence, because a person with partial fetal alcohol syndrome, like defendant, cannot apply his or her IQ to day-to-day activities. Therefore, a broader definition that measures the way a person functions should be used to diagnose intellectual disability. Dr. Greenspan concluded, under both the AAIDD Green Book and DSM-IV-TR, that defendant met the first prong in the diagnosis of mental retardation (significantly subaverage intellectual functioning), because he has significant intellectual deficits, and that defendant is intellectually disabled.
In addition, defense expert Dr. Connor, a neuropsychologist, testified that defendant‘s IQ scores were invalid because of the significant differences among the IQ subscores, such as scores for verbal and nonverbal or perceptual reasoning. He pointed to an MRI showing that defendant has brain damage, evidenced by a visible defect in his corpus callosum,17 which likely caused that difference in IQ subscores. Further, Dr. Connor testified that partial fetal alcohol syndrome together with defendant‘s corpus callosum damage and his low adaptive functioning supported a diagnosis of intellectual disability.
At the conclusion of the hearing, the trial court found that defendant suffered from partial fetal alcohol syndrome. The court observed that defendant‘s experts had opined that, because of defendant‘s partial fetal alcohol syndrome,
defendant‘s IQ scores were not as important as their own clinical judgment and the results of defendant‘s neuropsychological tests to their analyses of defendant‘s intellectual functioning. Nonetheless, however, the court concluded that the consensus in the psychological community, as evidenced by the
“Defendant has not proved by a preponderance of the evidence that he meets the Prong One, ‘significantly sub-average intellectual functioning.’ For this reason, the court does not reach Prongs Two and Three. One of Dr. Sebastian‘s slides was a picture of overlapping circles that illustrates the simple truth about this case: Atkins does not bar the execution of all persons with [fetal alcohol syndrome]. There are people with [intellectual disability]. There are people with [fetal alcohol syndrome]. There is a small group in the middle that has both. Unfortunately, defendant falls outside of that group.”
Notwithstanding that the trial court expressly declined to reach the second prong, the court found that, “[a]s to Prong Two, adaptive functioning, defendant scored more than two standard deviations below the mean on the [relevant] tests, averaging minus 2.5.”18 The court added, however, that, even though it had found that defendant suffered from partial fetal alcohol syndrome, which affected his adaptive functioning, there was no generally accepted scientific opinion in the field of psychology that a diagnosis of intellectual disability should be made based only on adaptive functioning. The court concluded that it could not depart from the three criteria mentioned in Atkins (that is, essentially, the three prongs set out in the
In this court, defendant first repeats the argument he made below that the trial court should have relied on his experts’ conclusions that, under the
“In Bales v. SAIF, 294 Or 224, 656 P2d 300 (1982), we made it clear that a decision as to which of two conflicting schools of
medical thought is correct is not a question of law; it is a question of fact to be decided by presenting in proper evidentiary form the various views to the finder of fact. *** We also observed that the opinion of an expert should not necessarily be given less weight by a finder of fact just because the witness espouses the view of a minority of his profession.”
Defendant argues that, in this case, the so-called “minority” view was held by one of his witnesses, Dr. Greenspan, whom the trial court acknowledged to be an expert in intellectual disability and the author of many studies relied on by the AAIDD in formulating its definition of intellectual disability, as well as by Drs. Adler and Connor. Therefore, he continues, the trial court had sufficient evidence on which to base a conclusion that defendant had deficits in intellectual functioning that rendered him intellectually disabled. As discussed, at the Atkins hearing, the trial court found that Atkins, the
The trial court stated that the dispute “is not about whether intellectual disability should be measured according to a rigid cutoff or fixed intelligence test score;” rather, it boiled down to “what weight the court should give to both the general IQ score and the sub scores in determining whether this defendant has ‘significantly sub average intellectual functioning.‘” In deciding what weight to give to IQ scores, the court stated that it would rely on the
The trial court thus considered and weighed the evidence presented at the Atkins hearing and, based on that evidence, ruled that defendant had not met his burden of establishing ineligibility by a preponderance of the evidence. The trial court did not, as defendant suggests, use a bright-line rule requiring an IQ score of at least two standard deviations below the mean for a determination of intellectual disability in determining whether defendant had made the necessary showing. The trial court determined that defendant had not met the first prong—the intellectual functioning prong—based on his IQ scores, but it did not end its analysis there. Rather, as described, the court considered defendant‘s IQ subtest scores and the results of other neuropsychological tests administered by the examining psychologists and psychiatrists and found them all to be insufficient to establish intellectual disability. For those reasons, we conclude that the trial court‘s Atkins ruling was not erroneous at the time it was made, and we reject defendant‘s argument to the contrary.
Alternatively, defendant argues that the publication of the American Psychiatric Association‘s
The state responds that neither the
As we explained above, the
“Intellectual disability (intellectual developmental disorder) is a disorder with onset during the developmental period that includes both intellectual and adaptive functioning deficits in conceptual, social, and practical domains. The following three criteria must be met:
“A. Deficits in intellectual functions, such as reasoning, problem solving, planning, abstract thinking, judgment, academic learning, and learning from experience, confirmed by both clinical assessment and individualized, standardized intelligence testing.
“B. Deficits in adaptive functioning that result in failure to meet developmental and socio-cultural standards for personal independence and social responsibility. ***
“C. Onset of intellectual and adaptive deficits during the developmental period.”
“The various levels of severity are defined on the basis of adaptive functioning, and not IQ scores, because it is adaptive functioning that determines the level of supports required.”
Although the
“IQ test scores are approximations of conceptual functioning but may be insufficient to assess reasoning in real-life situations and mastery of practical tasks. For example, a person with an IQ score above 70 may have such severe adaptive behavior problems in social judgment, social understanding, and other areas of adaptive functioning that the person‘s actual functioning is comparable to that of individuals with a lower IQ score. Thus, clinical judgment is needed in interpreting the results of IQ tests.”
Those differences reflect a significant change in the way that intellectual disability is diagnosed, and appear to permit a finding of “deficits in intellectual functions,”
In Hall, the court considered the constitutionality of a Florida statute that defined intellectual disability to require an IQ test score of 70 or less. The defendant in that case, Hall, had an IQ of 71, which was within the margin of error for the test, but the Florida Supreme Court held that, under the state statute, Hall was not entitled to a hearing to try to establish his intellectual disability and resulting ineligibility for the death penalty. The Supreme Court held that, when a defendant has an IQ score between 70 and 75, the defendant‘s lawyers must be allowed to offer additional clinical evidence of intellectual deficit, including the inability to learn basic skills and adapt to changing circumstances. 134 S Ct at 2001. In reaching that conclusion, the Court observed that the existence of concurrent deficits in intellectual and adaptive functioning are the defining characteristics of intellectual disability. Id. at 1994. The Court noted that, on its face, the Florida statute could have been construed consistently with the way intellectual disability was discussed in Atkins, which relied on the
“Pursuant to this mandatory cutoff, sentencing courts cannot consider even substantial and weighty evidence of intellectual disability as measured and made manifest by the defendant‘s failure or inability to adapt to his social and cultural environment, including medical histories, behavioral records, school tests and reports, and testimony regarding past behavior and family circumstances. This is so even though the medical community accepts that all this evidence can be probative of intellectual disability, including for individuals who have an IQ test score above 70. ***
“Florida‘s rule disregards established medical practice in two interrelated ways. It takes an IQ score as final and conclusive evidence of a defendant‘s intellectual capacity, when experts in the field would consider other evidence. It also relies on a purportedly scientific measurement of defendant‘s abilities, his IQ score, while refusing
to recognize that the score is, on its own terms, imprecise.”
It is true that defendant‘s IQ in this case is higher than that of the defendant in Hall, and, in fact, higher than the range of scores that the Court was specifically concerned with in Hall. We also recognize that, unlike the Florida Supreme Court, the trial court in this case did not use a strict numerical cutoff when deciding that defendant had not met his burden of proof. However, the Court‘s statements in Hall about the need to consider a defendant‘s serious deficits in adaptive functioning in determining intellectual disability for purposes of ineligibility for the death penalty apply with equal force in the present circumstances. In this case, the trial court concluded that it would be inappropriate to consider defendant‘s deficits in adaptive functioning in determining whether defendant demonstrated significantly subaverage intellectual functioning under the
Those standards, however, were undergoing change, as the testimony of defendant‘s medical experts suggested, and the changes are reflected in the
In Atkins and in Hall, the Court observed that individuals who meet the “clinical definitions” of intellectual disability bear diminished personal culpability, because, by definition, they have diminished capacity to understand and process information, to communicate, to learn from their mistakes and experiences, to engage in logical reasoning, to control impulses, and to understand the reactions of others. Hall, 134 S Ct at 1993; Atkins, 536 US at 318. As we have explained, under the
As we have described, that was essentially the position that defendant‘s experts took at the Atkins hearing. The current consensus in the psychological community on this point is, however, inconsistent with the trial court‘s rejection of defendant‘s experts’ diagnosis of intellectual disability on the basis that there is no generally accepted scientific opinion in the field of psychology that adaptive functioning plays a role in the determination of a deficit in intellectual function. For that reason, even though the trial court‘s ruling comported with the published standards existing at the time that the court ruled, we now conclude that the trial court did not apply now-current medical standards in determining that defendant had not met his burden of
This court has recognized that a high level of scrutiny is required in death penalty cases:
“Capital cases require our most vigilant and deliberative review. We agree with the United States Supreme Court statement that ‘[d]eath is a punishment different from all other sanctions in kind rather than degree’ so that ‘there is a [corresponding] difference in the need for reliability in the determination that death is the appropriate punishment in a specific case.’ Woodson v. North Carolina, 428 US 280, 303-05, 96 S Ct 2978, 2991, 49 L Ed 2d 944, 961 (1976).”
State v. Guzek, 322 Or 245, 264, 906 P2d 272 (1995). Allowing the trial court‘s ruling to stand would “create[] an unacceptable risk that [a] person[] with intellectual disability will be executed.” Hall, 134 S Ct at 1990. We therefore remand for a new Atkins hearing, in which the trial court shall consider the evidence presented in light of the standards set out in the
C. Defendant‘s Penalty-Phase Assignments of Error
If, after a new Atkins hearing, the trial court again determines that defendant is eligible for the death penalty under Atkins, a second penalty-phase proceeding would not be required unless this court were to find reversible error in the penalty-phase proceeding below. Accordingly, we consider defendant‘s penalty-phase assignments of error to determine whether any is well taken.
1. Trial court‘s refusal to permit defendant‘s experts to testify about their diagnoses
Defendant contends that the trial court erred during the penalty phase in refusing to allow his experts to testify that they had diagnosed defendant as intellectually disabled. Following the trial court‘s ruling at the Atkins hearing that defendant was eligible for the death penalty, defendant requested the trial court‘s permission to call Drs. Greenspan and Adler to testify that they had diagnosed defendant as intellectually disabled at a future penalty-phase hearing, in the event the jury convicted him of aggravated murder at the conclusion of the guilt phase. Defendant explained that the prosecutor and the trial court had agreed that he could present evidence of intellectual disability during the penalty phase. Defendant argued that the jury should consider evidence of intellectual disability just like other mitigating evidence—something that could, but need not, merit a life sentence.
The trial court stated that it already had determined that defendant was not intellectually disabled. Therefore, the court reasoned, the jury must be permitted to consider and give effect to any mitigating evidence, but that requirement would be met if defendant were able to present evidence of his “diminished capacity.” Near the close of the state‘s evidence during the penalty phase, defendant renewed his request that Drs. Greenspan and Adler be permitted to testify about their intellectual disability diagnoses. The court then ruled that “no party could introduce evidence that defendant was intellectually disabled, including evidence from defense experts that they had diagnosed defendant as intellectually disabled.”
In this court, defendant argues that evidence that two experts diagnosed him as intellectually disabled was relevant to defendant‘s character and background and to the circumstances of the charged offense under
“the Atkins decision overruled the aspect of Penry [v. Lynaugh, 492 US 302, 109 S Ct 2934, 106 L Ed 2d 256 (1989)] that had allowed the execution of mentally retarded persons. However, the Court‘s ruling in Penry that a defendant must be allowed to present all information to a jury that might be considered mitigating evidence, including evidence regarding mental
capacity and childhood abuse, was not altered by the Atkins decision.”
Ronald D. Rotunda and John E. Nowak, 3 Treatise on Constitutional Law: Substance and Procedure § 17.3(d), 46-47 (5th ed 2012). Indeed, defendant points out, the Supreme Court has held that
“a State cannot preclude the sentencer from considering any relevant mitigating evidence that the defendant proffers in support of a sentence less than death. *** [V]irtually no limits are placed on the relevant mitigating evidence a capital defendant may introduce concerning his own circumstances[.]”
Payne v. Tennessee, 501 US 808, 822, 111 S Ct 2597, 115 L Ed 2d 720 (1991) (internal quotation marks and citations omitted). Defendant argues that the trial court violated the
The state responds that the trial court did not preclude defendant from presenting any substantive evidence of his mental and intellectual deficits, including any diagnoses of those deficits and the factual bases for them; it merely ruled that defendant could not elicit testimony from his experts about their opinion on the ultimate legal issue—whether defendant was intellectually disabled as that phrase is used in Atkins for purposes of defining the scope of the exemption from execution. The state argued that that ruling was correct, because a witness is not entitled to offer an opinion on a legal issue that is at variance with the trial court‘s ruling. In its briefing before this court, the state acknowledges, as it must, that “a witness is entitled to offer an opinion within the proper scope of his or her professional expertise.” Additionally, in oral argument in this court, the state conceded that, had defendant asked his experts, during the penalty phase of the trial, to state their diagnoses of defendant, their testimony to the effect that they had diagnosed defendant as intellectually disabled would have been admissible. However, the state argues, that is not what happened here or what the trial court‘s ruling addressed.
Additionally, the state argues that the trial court did allow defendant to present extensive relevant and substantive evidence about his substantial mental and intellectual deficits, and his experts were permitted to testify about all their diagnoses, other than their diagnoses that defendant was intellectually disabled. The state contends that the specific opinion by defendant‘s experts that he is intellectually disabled would not have been relevant to any issue that was before the jury, because the trial court had already ruled that he is not intellectually disabled. That is, the state goes on, it was proper for the jury to hear and consider evidence regarding the nature, extent, and cause of defendant‘s intellectual deficits, and evidence on those points was admitted without restriction. But having the defendant‘s experts go one step further to opine that defendant is “intellectually disabled” would not have provided any additional meaningful information to the jury.
As a preliminary matter, after reviewing the record, we conclude that the state takes an overly narrow view of the trial court‘s ruling. In an Agreed Narrative Statement, signed by counsel for the state and defendant, the parties memorialized a discussion that they had had with the trial court in chambers during the penalty phase regarding “limitations on defendant‘s evidence.” According to that statement,
“defendant informed [the judge] of his intent to offer mitigating evidence that two of his experts, Drs. Adler and Greenspan, had diagnosed him as intellectually disabled. The evidence would have been identical to the evidence defendant offered during the pretrial hearing. [The judge] ruled that no party could introduce evidence that defendant was intellectually disabled, including evidence from defense experts that they had diagnosed defendant as intellectually disabled. [The judge] so ruled because she had ruled pretrial that defendant had failed to meet his burden to establish that he was ineligible for the death penalty because of intellectual disability and she concluded that no party
could offer evidence inconsistent with that ruling.”
(Emphasis added.) Thus, the agreed narrative confirms that defendant informed the court of his intention to offer his experts’ diagnoses of intellectual disability as mitigating evidence and that the court precluded introduction of those diagnoses for any and all purposes, and not only to establish that defendant was ineligible for the death penalty under Atkins.19 It is true that the judge cited her earlier Atkins ruling as the reason for excluding the experts’ diagnoses, but nothing in the Agreed Narrative Statement suggests that defendant would have been permitted to present evidence of his experts’ intellectual disability diagnoses as mitigation evidence.
We also disagree with the state that evidence that two experts diagnosed defendant as intellectually disabled was irrelevant. The relevance standard set out in
As defendant points out, the death penalty statutes plainly provide that a trial court must admit any evidence relevant to a sentencing jury‘s consideration of the sentence for aggravated murder.
“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[.]”
“the legislature intended the scope of the statutory fourth question to be co-extensive with the scope of the fourth question held in Penry and [State v. Wagner, 309 Or 5, 786 P2d 93 (1990) (]Wagner II [)] to satisfy the requirements of the
Eighth Amendment to the Constitution of the United States .”
319 Or at 582. As pertinent here, the Supreme Court held in Penry that a defendant must be allowed to present all information to a jury that might be considered mitigating evidence, including evidence regarding mental capacity and childhood abuse. 492 US at 328. And, in Wagner II, this court held that all aspects of a defendant‘s character and background are relevant to the jury‘s “exercise of a reasoned moral response to the question ‘should defendant receive a death sentence?‘” 309 Or at 19.
Dr. Greenspan, a recognized expert in intellectual disability, and Dr. Adler, a forensic psychiatrist, had diagnosed defendant as intellectually disabled, yet they were required to
As we have stated, under state law, this court must affirm notwithstanding error if there was “little likelihood” that the error affected the jury‘s verdict. Rogers II, 352 Or at 543. And when, as here, the error violates a defendant‘s federal constitutional right, the court may affirm “only when a ‘reviewing court may confidently say, on the whole record, that the constitutional error was harmless beyond a reasonable doubt.‘” State v. Bray, 342 Or 711, 725, 160 P3d 983 (2007) (quoting Delaware v. Van Arsdall, 475 US 673, 681, 106 S Ct 1431, 89 L Ed 2d 674 (1986)). Under either standard, the trial court‘s error in refusing to permit defendant‘s experts to testify about their intellectual disability diagnoses was not harmless.
We have explained that the fourth question is a “mechanism for the sentencing jury to give meaningful effect to its consideration of the entire range of possible mitigating evidence and to provide a ‘reasoned moral response’ to the ultimate question of whether the defendant should live or die.” Wagner II, 309 Or at 13. For that reason, “it is the rare case in which this court can determine, when evidence relevant to that question is excluded, that the evidence could not have affected” the jury‘s decision whether to impose the death penalty. Stevens, 319 Or at 585. This is not that rare case. There is no burden of proof with respect to the fourth question; a juror may vote not to impose a death sentence for any reason.
Because we hold that the trial court erred in refusing to allow defendant‘s experts to testify that they had diagnosed defendant as intellectually disabled and that that error was not harmless, we vacate defendant‘s sentence of death.
2. Trial court‘s refusal to instruct the jury that it must determine whether defendant is intellectually disabled
We address two additional issues that are likely to arise on remand if there is a further penalty phase proceeding. The first issue, which is related to the one that we just decided, is whether the trial court erred in refusing to instruct the jury that it must determine whether defendant is intellectually disabled. Following the trial court‘s ruling at the Atkins hearing that defendant was eligible for the death penalty, defendant requested the trial court, in any subsequent penalty-phase proceeding, to ask the jury separately to decide whether it finds that defendant is intellectually disabled and to instruct the jury that an affirmative answer to that question would preclude the possibility of the death penalty. Defendant argued that, under the
The trial court declined to instruct the jury about intellectual disability, ruling that there is no constitutional or other requirement of a separate jury question on that issue. In addition to ruling on that question under the
In this court, defendant argues that both the
The state responds that defendant‘s argument takes the narrow exemption from execution that Atkins announced, which was based on a mitigating fact (intellectual disability), and attempts to convert it into an element that the state must prove in the negative. That is, the state contends, defendant has turned the analysis on its head, suggesting, essentially, that the absence of a mitigating factor is actually an aggravating factor that the state must prove to the jury beyond a reasonable doubt. The state argues that nothing in the Court‘s case law suggests that, when the law defines a mitigating fact that creates an exemption or departure from the maximum sentence, the state must prove to the jury that that fact does not exist.
We agree with the state that, because intellectual disability is a fact that operates to reduce rather than to increase the maximum punishment permitted by a verdict of guilt, the
“If facts found by a jury support a guilty verdict of murder, the judge is authorized by that jury verdict to sentence the defendant to the maximum sentence provided by the murder statute. If the defendant can escape the statutory maximum by showing, for example, that he is a war veteran, then a judge that finds the fact of veteran status is neither exposing the defendant to a deprivation of liberty greater than that authorized by the verdict according to statute, nor is the judge imposing upon the defendant a greater stigma than that accompanying the jury verdict alone. Core concerns animating the jury and burden-of-proof requirements are thus absent from such a scheme.”
Apprendi, 530 US at 491 n 16 (citation omitted). Like the finding of veteran status that the Court used in its example, a finding of intellectual disability permits the defendant to “escape the statutory maximum.” That is, a defendant‘s intellectual disability reduces the maximum possible sentence from capital punishment to life in prison. Therefore, the absence of intellectual disability is not an element that the state must prove beyond a reasonable doubt.
Defendant also argues that, under the
Defendant‘s argument is based on a faulty premise: that, if the jury were to find, as a factual matter, that he is intellectually disabled, then the
That is not to say that jurors may not make their own determinations as a factual, medical matter, based on the evidence presented, whether defendant is intellectually disabled. As we have previously noted, the Supreme Court pointed out in Bies that “[intellectual disability] for purposes of Atkins, and [intellectual disability] as one mitigator to be weighed against aggravators, are discrete issues.” 556 US at 829. We have already held that defendant was entitled, under
3. The trial court‘s exclusion of evidence that Davenport received a life sentence
The last issue that we address is whether the trial court erred in granting the state‘s motion in limine to exclude evidence during the penalty phase that Davenport received a life sentence for his role in the victim‘s murder.
In its motion, the state argued that neither Davenport‘s sentence nor evidence related to his intellectual disability was relevant to any fact at issue in the case. Defendant responded that evidence that an equally or more culpable codefendant received a life sentence was a circumstance of the offense and, therefore, proper mitigation evidence under
In this court, defendant reprises the arguments he made below, arguing that both
As we have stated, during the penalty phase, “evidence may be presented as to any matter that the court deems relevant to sentence including *** any *** mitigating evidence relevant to” the fourth question, whether the defendant should receive a sentence of death.
Evidence is “relevant” under
Moreover, in the death penalty context, whether evidence is “mitigating” also is a low standard. Notably, evidence need not necessarily relate to the defendant‘s guilt for the crime to be mitigating. Stevens, 319 Or at 583; Tennard v. Dretke, 542 US 274, 285-86, 124 S Ct 2562, 159 L Ed 2d 384 (2004). Rather, as the Supreme Court stated in Tennard, the question is whether the evidence “would be ‘mitigating’ in the sense that it might serve as a basis for a sentence less than death.” 542 US at 285 (citations and internal quotation marks omitted). That is, evidence is mitigating “if the sentencer could reasonably find that it warrants a sentence less than death.” McKoy, 494 US at 441.
Stevens illustrates the low threshold for both relevance and mitigation. In that case, the defendant asserted that the trial court had erred in sustaining the state‘s objection to a question that his lawyer had asked a state‘s witness on cross-examination, arguing that that evidence was relevant to the fourth question. The witness (the defendant‘s estranged wife) had been asked to give her opinion about the potential negative effect of the defendant‘s execution on their daughter. 319 Or at 584. This court acknowledged that that testimony would not offer any direct evidence about defendant‘s character or background, but concluded that, circumstantially, it could permit a rational juror to infer that there were positive aspects to the defendant‘s character that could justify a sentence less than death. Id. For that reason, the court held that the testimony was sufficiently related to the defendant‘s character as to be relevant in mitigation.
The question in this case is whether evidence of Davenport‘s life sentence is similarly relevant in mitigation to the jury‘s consideration of the fourth question. The state argues that a sentence imposed on a codefendant does not have a tendency to show any aspect of a defendant‘s character or background, nor does it tend to show any relevant circumstance of the offense. The state contends that a defendant facing the death penalty is entitled to an individualized consideration of whether death is appropriate, which should be based on the defendant‘s own personal circumstances, his entire personal and criminal history, and his personal culpability for the crime. According to the state, disclosing to the jury that a codefendant received a sentence other than death would be confusing and irrelevant, because the codefendant‘s sentence would have been based on factual and legal circumstances that were unique to that person. As such, they would have no logical relevance to the appropriate punishment for the defendant.
The state characterizes defendant‘s argument as positing that, if the jurors in this case found that Davenport was the person primarily responsible for the murder and that defendant himself was only an accomplice, then the jury could conclude, based on the fact that Davenport was sentenced to life in prison, that the death penalty was not an appropriate sentence for him. But, the state responds, the law in Oregon is well established that one who intentionally aids another in the commission of a crime is just as guilty as the person who committed the crime.
Although it is a close question, we conclude that evidence that Davenport received a life sentence is relevant mitigating evidence under
Second, evidence of Davenport‘s life sentence is mitigating, in the sense that a juror could reasonably find that it warrants a sentence less than death. As we have stated, the question for the jury during the penalty phase, ultimately, is “whether the defendant should live or die,” and the fourth question is a mechanism for the jury “to provide a ‘reasoned moral response‘” to that question. Wagner II, 309 Or at 13. As we have just noted, Davenport was primarily responsible for the victim‘s death and, defendant argued, talked defendant into participating in the killing. The fact that Davenport did not receive a death sentence because the court determined that he was intellectually disabled reflects indirectly on defendant‘s own potential intellectual disability and, for the reasons the Court stated in Penry, on his moral culpability. That possibly mitigating circumstance is appropriately part of the jury‘s consideration of whether defendant deserves death.
Because the fact that Davenport received a life sentence for his role in the victim‘s murder was relevant mitigating evidence under
To summarize, defendant raises 29 assignments of error. We discuss five of those assignments of error in this opinion, and we hold that three are well taken. Specifically, we hold, first, that, although the trial court erred in permitting the prosecutor effectively to depose defendant‘s codefendant, Davenport, at a pretrial hearing, that error was harmless. Second, we hold that, at defendant‘s Atkins hearing, the trial court used an inappropriate standard in determining that defendant had not met his burden of proving his intellectual disability, and we therefore remand for a new Atkins hearing, in which the trial court shall consider the evidence presented in light of the standards set out in the
The judgment of conviction is affirmed. The sentence of death is vacated, and the case is remanded to the circuit court for further proceedings.
Notes
“[THE COURT:] Next, I think we discussed in chambers the parameters of the expert testimony here, and we‘ve agreed that there would not be testimony from an expert that went outside the parameters of my findings of fact in the Atkins hearing, nor would they—nor would there be cross-examination that went beyond those parameters. And I think we agreed that the ‘as if’ portion of my opinion is basically what these experts will be talking about, if that makes sense, and then you‘re free to cross-examine about that. Okay?”
The Agreed Narrative Statement acknowledges that that summary is “cryptic” and it recites that the “agreed narrative statement accurately describes the discussion and rulings to which the parties referred in the attached pages of the transcript.”“‘Relevant evidence’ means evidence having any tendency to make the existence of any fact that is of consequence to the determination of the action more probable or less probable than it would be without the evidence.”
“(A) Whether the conduct of the defendant that caused the death of the deceased was committed deliberately and with the reasonable expectation that death of the deceased or another would result;
“(B) Whether there is a probability that the defendant would commit criminal acts of violence that would constitute a continuing threat to society; [and]
“(C) If raised by the evidence, whether the conduct of the defendant in killing the deceased was unreasonable in response to the provocation, if any, by the deceased[.]”
“The court shall instruct the jury to answer the [fourth question] ‘no’ if, after considering any aggravating evidence and any mitigating evidence concerning any aspect of the defendant‘s character or background, or any circumstances of the offense and any victim impact evidence as described in paragraph (a) of this subsection, one or more of the jurors believe that the defendant should not receive a death sentence.”
“The court shall charge the jury that it may not answer any issue ‘yes,’ under paragraph (b) [setting out the four questions] of this subsection unless it agrees unanimously.”
“In all criminal prosecutions, the accused shall enjoy the right to a speedy and public trial, by an impartial jury of the State and district wherein the crime shall have been committed, which district shall have been previously ascertained by law, and to be informed of the nature and cause of the accusation; to be confronted with the witnesses against him; to have compulsory process for obtaining witnesses in his favor, and to have the Assistance of Counsel for his defense.”
Additionally, we reject the state‘s argument that permitting the jury to consider, as mitigation, evidence that an equally or more culpable codefendant received a sentence less than death would be inherently confusing to the jury. Such evidence routinely has been admitted and argued in mitigation in capital cases around the country for decades. In fact, a federal statute and at least one state statute require factfinders in capital murder cases to consider, as a mitigating factor, whether “[a]nother defendant or defendants, equally culpable in the crime, will not be punished by death.”