STATE OF OREGON, Plаintiff on Review, v. RANDY LEE GUZEK, Defendant on Review.
CC 87-CR-0373-TM; SC S45272
Supreme Court of Oregon
Argued and submitted January 11, 2002, sentence of death vacated, case remanded to the circuit court for further proceedings March 4, 2004
86 P.3d 1106 | 336 Or. 424
Rolf C. Moan, Assistant Attorney General, Salem, argued the cause for plaintiff on review. With him on the briefs were Hardy Myers, Attorney General, Michael D. Reynolds, Solicitor General, and Robert B. Rocklin and Holly A. Vance, Assistant Attorneys General.
Before Carson, Chief Justice, and Gillette, Durham, Riggs, and De Muniz, Justices.*
RIGGS, J.
Durham, J., concurred and filed an opinion.
Gillette, J., concurred in part and dissented in part and filed an opinion, in which Carson, C. J., joined.
This case is before us on automatic and direct review of a judgment that imposed a sentence of death for aggravated murder.
I. FACTS
The following facts are taken from this court‘s opinion in Guzek I, 310 Or at 301-02, and from the record from defendant‘s third penalty-phase proceeding. The victims, Rod and Lois Houser, knew defendant because he had been a high school acquaintance of their niece, who lived with them in rural Deschutes County. Defendant and the niece had dated. After the niece ended their relationship, defendant acted with hostility toward her—in her words, “stalk[ing]” her—prompting Rod Houser to warn defendant to stay away from the Housers’ home.
In June 1987, defendant and two associates planned to burglarize a particular residence and kill its occupant. When the three men arrived at that residence, however, they were thwarted by the presence of too many people. One of defendant‘s associates suggested that they target the
When Rod Houser answered defendant‘s knock at the door, one of defendant‘s associates, at defendant‘s prompting, shot Rod Houser repeatedly, killing him. Defendant then found and shot Lois Houser three times, killing her. The three men then ransacked the home and stole a great deal of personal property. The Housers’ niece was not at home at the time.
The Housers’ two daughters went to their parents’ home two days later, worried because they had not been able to reach their parents by telephone. The daughters discovered their parents’ bodies inside the ransacked home. Later, the daughters saw and identified their parents’ belongings in defendant‘s possession. As noted, defendant ultimately was convicted of two counts of aggravated murder and sentenced to death.
II. PROCEDURAL HISTORY
Beginning with defendant‘s first appeal, we describe the procedural history of this case in some detail, because that history provides important background information for much of the discussion that follows. First, we note that, after defendant‘s first penalty-phase trial, in an unrelated case on remand from the United States Supreme Court, this court concluded that the Eighth Amendment to the United States Constitution2 requires that a penalty-phase jury consider and answer a general mitigation question, to ensure that the jury has the opportunity to give effect to any mitigating evidence relevant “outside or beyond” particular statutory issues submitted to the jury. State v. Wagner, 309 Or 5, 13, 786 P2d 93, cert den, 498 US 879 (1990) (Wagner II). Because
The next year, another decision of the United States Supreme Court again affected defendant‘s penalty-phase proceedings. According to the interpretation of the Eighth Amendment in effect at the time of defendant‘s crimes, the introduction of “victim-impact” evidence in the penalty phase of a capital trial constituted cruel and unusual punishment under the Eighth Amendment. See Booth v. Maryland, 482 US 496, 509, 107 S Ct 2529, 96 L Ed 2d 440 (1987) (so holding). However, in 1991, the Supreme Court overruled Booth in part, concluding that that decision had “deprive[d] the State of the full moral force of its evidence” in a death-penalty case. Payne v. Tennessee, 501 US 808, 825, 111 S Ct 2597, 115 L Ed 2d 720 (1991).3 The Supreme Court held in Payne that the Eighth Amendment did not erect a per se bar to victim-impact evidence. Id. at 827. In the wake of Payne, the state offered, and the trial court admitted, victim-impact evidence against defendant in his second penalty-phase proceeding. Defendant again received a sentence of death.
On review of that second death sentence, defendant argued that the victim-impact evidence that the state had introduced against him was not relevant to any of the questions that the jury was required to consider under the applicable death-penalty statutory scheme,
III. TRUE-LIFE SENTENCING OPTION
We turn to the reason for which, as the state concedes, we must vacate defendant‘s sentence of death.
Defendant‘s third penalty-phase proceeding began in 1997. The statutes then in effect required the trial court, after this court‘s remand in Guzek II for further penalty-phase proceedings, to sentence defendant to life imprisonment or, at the state‘s election, to empanel a jury for a new penalty-phase proceeding to determine if defendant should be sentenced to death, to life imprisonment without the possibility of release or parole (“true life“), or to life imprisonment with the possibility of release or parole (“ordinary life“).
In his third penalty-phase proceeding, defendаnt moved to have the trial court instruct the jury on the true-life sentencing option. To that end, he expressly waived all ex post facto guarantees that otherwise would have protected him from retroactive application of the true-life option. The trial court denied defendant‘s motion and did not instruct the jury regarding true life.
IV. ISSUES LIKELY TO ARISE ON REMAND
Defendant raises other issues on review. Below, we address some of those issues, which are likely to arise on remand. Specifically, we address (1) the admissibility of “any aggravating evidence” and victim-impact evidence against defendant pursuant to the current versions of
A. Admission of “Any Aggravating Evidence” and Victim-Impact Evidence
At the time of defendant‘s crimes in 1987,
“(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 аny, by the deceased.”7
The state was required to prove affirmative answers to those questions beyond a reasonable doubt. See
Before defendant‘s second penalty-phase proceeding, the 1989 Legislative Assembly enacted a “fourth question,” set out at
“In the [penalty-phase] 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[.]”9
Or Laws 1995, ch 531, § 2 (emphasis added). The reference to “paragraph (b)(D) of this subsection” pertained to the fourth statutory question for the jury, discussed above.
Two years later, the 1997 Legislative Assembly incorporated the 1995 amendment to
“The court shall instruct the jury to answer the question in paragraph (b)(D) of this subsection ‘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 subsection (1)(a) of this section, one or more of the jurors believe that the defendant should not receive a death sentence.”
Or Laws 1997, ch 784, § 1 (emphasis added).
In his third penalty-phase proceeding, defendant argued that retroactive application of the foregoing 1995 and 1997 amendments to
In any subsequent penalty-phase proceeding, the state is likely to offer the same or similar aggravating and victim-evidence against defendant, and defendant is likely to make the same objections. Accordingly, we address those objections here, beginning with defendant‘s state constitutional challenge to retroactive application of the “any aggravating evidence” provisions of the 1995 and 1997 amendments. See, e.g., State v. Montez, 324 Or 343, 363, 927 P2d 64 (1996), cert den, 520 US 1233 (1997) (addressing defendant‘s state constitutional argument before addressing his federal constitutional argument).
1. Retroactive Application of “Any Aggravating Evidence” Provisions of ORS 163.150(1)(a) and (c)(B) to Defendant‘s Remanded Penalty-Phase Proceeding
As noted, at the time of his crimes in 1987, defendant was permitted under
Defendant argues that the 1995 and 1997 amendments to
The state responds, first, that the ex post facto prohibition of
We begin with the discussion of
“‘I will state what laws I consider ex post facto laws, within the words and the intent of the prohibition. 1st. Every law that makes an action done before the passing of the law, and which was innocent when done, criminal; and punishes such action. 2d. Every law that aggravates a crime, or makes it greater than it was, when committed. 3d. Every law that changes the punishment, and inflicts a greater punishment, than the law annexed to the crime, when committed. 4th. Every law that alters the legal rules of evidence, and receives less, or different testimony, than the law required at the time of the commission of the offence, in order to convict the offender. All these and similar laws are manifestly unjust and oppressive. ‘”
As noted above, the state first seeks to distinguish the “any aggravating evidence” provisions of the 1995 and 1997 amendments to
First, we note that the categories described in Calder are general ones, used to summarize the types of ex post facto laws that the federal constitutional provision then prohibited. Justice Chase made that clear in his opinion by stating that the laws described in those categories and “[a]ll * * * similar laws are manifestly unjust and oppressive.” Id. at 390-91 (emphasis added). The question before us, then, is whether a change in the rules of evidence applicable to a penalty-phase proceeding that permits “different testimony than the law required at the time of the commission of the offen[s]e,” id. at 390, to sentence a defendant to death is sufficiently similar to the laws described in Calder‘s fourth category to proscribe the application of that change in the law on ex post facto grounds.
We turn to the proceedings under
Turning to the 1995 and 1997 amendments to
After the 1995 and 1997 amendments to
The state nonetheless argues that, because it was permitted at the time of defendant‘s crimes in 1987 to introduce a broad range of aggravating evidence under the first three statutory questions, “it is difficult to hypothesize [any] aggravating evidence that, while admissible [under the amendment to
Although we agree with the state that, at the time of defendant‘s crimes in 1987, it was permitted to introduce a broad range of aggravating evidence, we disagree that the 1995 and 1997 amendments essentially effected no change to the state‘s ability to introduce aggravating evidence against defendant at a remanded penalty-phase proceeding. As explained above, the state now may introduce “any aggravating evidence” that is not relevant to the first three statutory questions and that pertains to a statutory question that is not subject to any burden of proof; further, such evidence is not limited to rebutting any particular mitigating evidence offered by a defendant. Stated differently, the 1995 and 1997 amendments had the effect of removing two limitations on the state‘s evidence that heretofore ran in a defendant‘s favor, that is, the requirements that all evidence introduced against the defendant (and therefore supporting imposition of the death penalty) would (1) be limited in its relevance either to the first three statutory questions or to rebut any particular mitigating evidence that the defendant proffered; and (2) respecting the first three statutory questions, ultimately implicate the highest possible burden of proof. Such a change in the law undoubtedly qualifies as a “one-sided” change that makes imposition of a sentence of death more likely, retroactive application of which would contravene
In sum, we conclude that, in defendant‘s remanded penalty-phase proceeding, the trial court is precluded from retroactively applying the “any aggravating evidence” provisions of the 1995 and 1997 amendments to
2. Retroactive Application of Victim-Impact Evidence Provisions of ORS 163.150(1)(a) and (c)(B) to Defendant‘s Remanded Penalty-Phase Proceeding
As discussed above, in addition to adding a provision allowing for “any aggravating evidence,” the 1995 amendment to
In defendant‘s third penalty-phase proceeding, the state introduced evidence of the victims’ personal characteristics and of the impact that their murders had on their two daughters, on their niece and nephew, and on Rod Houser‘s brother. Defendant objected to the state‘s victim-impact evidence, arguing that, like the “any aggravating evidence” provisions of the 1995 and 1997 amendments to
a. Oregon Constitution
As defendant points out, under the 1989 version of the death-penalty statutory scheme in place at the time of his second penalty-phase proceeding (and, indisputably, under the 1985 version of that statute in place at the time of his crimes in 1987), the admission of victim-impact evidence constituted reversible error. Guzek II, 322 Or at 270. Defendant argues that, accordingly, the victim-impact evidence provisions of the 1995 and 1997 amendments to
The state counters that the state constitutional ex post facto prohibition does not proscribe retroactive application of the victim-impact evidence provisions of the 1995 and 1997 amendments to
We need not resolve the parties’ dispute as to whether retroactive application of the victim-impact evidence provisions of the 1995 and 1997 amendments to
The voters adopted what is now
The state‘s argument that, on remand,
We begin with the text of
“(1) To preserve and protect the right of crime victims to justice, to ensure crime victims a meaningful role in the criminal and juvenile justice systems, to accord crime victims due dignity and respect and to ensure that criminal”
“(a) The right to be present at and, upon specific request, to be informed in advance of any critical stage of the proceedings held in open court when the defendant will be present, and to be heard at the pretrial release hearing and the sentencing or juvenile court delinquency disposition;
“* * * * *
“(2) This section applies to all criminal and juvenile court delinquency proceedings pending or commenced on or after the effective date of this section. Nothing in this section reduces a criminal defendant‘s rights under the Constitution of the United States. Except as otherwise specifically provided, this section supersedes any conflicting section of this Constitution. * * *
“(3) As used in this section:
“* * * * *
“(c) ‘Victim’ means any person determined by the prosecuting attorney to have suffered direct financial, psychological or physical harm as a result of a crime and, in the case of a victim who is a minor, the legal guardian of the minor. In the event that no person has been determined to be a victim of the crime, the people of Oregon, represented by the prosecuting attorney, are considered to be the victims. * * *”
(Emphasis added.)
The text of
Because, as noted above,
“Nothing in this section reduces a criminal defendant‘s rights under the Constitution of the United States. Except as otherwise specifically provided, this section supersedes any conflicting section of this Constitution.”
By providing that
According to the first of the two sentences quoted above, the voters made clear that they did not intend to attempt to change any right previously guaranteed to a criminal defendant under the United States Constitution. Accordingly, in the event of a conflict between a victim‘s right to be heard and a criminal defendant‘s federal constitutional right, it is the victim‘s right to be heard that must give way.13 By contrast to that deference to federal constitutional law,
Applying the foregoing understanding of
b. United States Constitution
Defendant also argues that retroactive application of the victim-impact evidence provisions of the 1995 and 1997 amendments to
When interpreting the prohibition against ex post facto laws set out in
With that standard in mind, we again turn to the 1995 and 1997 amendments to
“* * * do not at all subvert the presumption of innocence, because they do not concern whether the admissible evidence is sufficient to overcome the presumption. Therefore, to the extent one may consider changes to such laws as ‘unfair’ or ‘unjust,’ they do not implicate the same kind of unfairness implicated by changes in rules setting forth a sufficiency of the evidence standard.”
B. Exclusion of Evidence Offered to Impeach Testimony of State Witnesses Wilson and Cathey
We turn to defendant‘s assignments of error concerning the trial court‘s decision to exclude evidence that defendant offered to impeach the transcript testimony of state witnesses Wilson and Cathey.
Wilson and Cathey were codefendants of defendant Guzek. The three men had gone to the Housers’ home together. Wilson had shot Rod Houser at defendant‘s prompting, and Cathey had stabbed Rod Houser in an effort to make the murder appear to have been a “cult killing.” Both Wilson and Cathey entered into plea agreements. They pleaded guilty to aggravated murder, agreed to cooperate in the prosecution of defendant, and received sentences of life imprisonment.
Wilson and Cathey testified against defendant during the guilt phase of defendant‘s first trial. They described their actions before the murders, including the preparations that they had made and their intent to kill the Housers. They described what had happened once they had arrived at the Housers’ home, including the instructions that defendant had given them. They also described what had happened after the murders, including defendant‘s payment to them for their participation.
The state sought to call Wilson and Cathey as witnesses against defendant in his second penalty-phase proceeding, but they refused to testify. The state again sought to call them during this third penalty-phase proceeding. Wilson and Cathey again refused. Cathey appeared in court and stated, without explanation, that he refused to testify. Wilson appeared by telephone and stated that, on the advice of counsel in connection with his federal habeas corpus proceedings, he was invoking his right under the
Defendant sought to refute Wilson‘s and Cathey‘s transcript testimony by offering evidence that tended to contradict that testimony, including evidence of inconsistent statements by the witnesses themselves. For example, defendant made an offer of proof that he would call as a witness a lawyer who had worked on defendant‘s second penalty-phase trial and to whom Cathey had stated in 1991 that Cathey, Wilson, and defendant had had no intention to kill the Housers before arriving at their home. That lawyer also would have testified that Cathey had told her that defendant had not directed Wilson to shoot Rod Houser. Defendant further made an offer of proof that he would have called as a witness an investigator to whom Wilson had stated in 1997 that there had been no “leader” among the codefendants and that they had not had any plan to kill the Housers. The triаl court sustained the state‘s objections to admission of the foregoing evidence.17 On review, defendant argues, among other things, that his proffered evidence refuting Wilson‘s and Cathey‘s transcript testimony did not qualify as hearsay and was relevant for impeachment purposes.
At the outset, we offer an important point of clarification. Under
That said, we turn to the state‘s argument that the trial court properly excluded defendant‘s proffered impeachment evidence refuting Wilson‘s and Cathey‘s transcript testimony because that evidence qualified as hearsay, not within any exception. The state asserts that defendant “does not appear to dispute [the] proposition” that his proffered evidence was hearsay. We disagree. Defendant does not concede that he offered his evidence refuting Wilson‘s and Cathey‘s transcript testimony only to prove the truth of the matter asserted therein. See
C. Exclusion of Alibi Evidence
We now turn to defendant‘s argument that the trial court erred in excluding his alibi evidence during his third penalty-phase proceeding.
According to the state‘s case, the Housers were murdered in the early morning hours of June 28, 1987. At his third penalty-phase proceeding, defendant sought the admission of two items of evidence that tended to show that he could not have been at the Housers’ home at that time: (1) the transcript of defendant‘s grandfather‘s testimony, admitted during the guilt phase, that defendant had been with him from 9:00 p.m. on June 28 until 2:00 a.m. on June 29, 1987; and (2) the testimony of defendant‘s mother that defendant had been at her home from shortly after 2:00 a.m. on the morning of June 29, 1987, and that, when she awoke at 4:20 a.m. on the same day, defendant was sleeping on a loveseat at her house. The trial court excluded that evidence, apparently on relevance grounds.19
On review, defendant argues that the trial court erred in excluding that evidence because it was “mitigating evidence” relevant to the fourth question under
Because the analysis of their relevance is different, we address separately the two different types of alibi evidence that defendant sought to present to the jury. The transcript of defendant‘s grandfather‘s testimony—like the transcript of any other witness‘s testimony—was relevant and subject to consideration in the penalty phase, regardless of its substance, because it was “previously offered and received” during the trial on the issue of guilt.
We turn to the question of the relevance of defendant‘s remaining alibi evidence—specifically, his mother‘s testimony. The state begins its argument with the unassailable premise that capital penalty-phase proceedings occur only if a jury has found a defendant guilty of the substantive offense. From that, the state urges that we infer that evidence of innocence is irrelevant to the penalty-phase proceeding. However, as is clear from this court‘s case law, as well as from decisions of the United States Supreme Court, the question of relevance of a capital defendant‘s proffered evidence in a penalty-phase proceeding is not that simple. Its relevance is, instead, a matter of statutory construction in the context of federal constitutional requirements. We now turn to that task, using the framework set out in PGE v. Bureau of Labor and Industries, 317 Or. 606, 610-12, 859 P.2d 1143 (1993) (court first considers text and context of statute at issue, as well as applicable case law construing statute). See also Swarens v. Dept. of Rev., 320 Or. 326, 331, 883 P.2d 853 (1994) (context includes “statute‘s development through successive legislatures“).
“In the [penalty-phase] proceeding, evidence may be presented as to any matter that the court deems relevant to sentence including, but not limited to, * * * mitigating evidence relevant to the issue in paragraph (b)(D) of this subsection[.]”
(Emphasis added.)
“Upon the conclusion of the presеntation of the evidence, the court shall submit the following issues to the jury:
“* * * * *
“(D) Whether the defendant should receive a death sentence.”
The jury instructions accompanying
“(A) The court shall instruct the jury to consider, in determining the issues in paragraph (b) of this subsection, any mitigating circumstances offered in evidence, including but not limited to the defendant‘s age, the extent and severity of the defendant‘s prior criminal conduct and the extent of the mental and emotional pressure under which the defendant was acting at the time the offense was committed.
“(B) The court shall instruct the jury to answer the question in paragraph (b)(D) of this subsection ‘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.”
(Emphasis added.)
Our task here is to determine whether defendant‘s proffered evidence constitutes “mitigating evidence” that is “relevant” to the question set out in
At the outset, we note that the wording of
However, we must read the applicable text in its proper context, PGE, 317 at 611, which, here, most notably includes earlier versions of the statutory scheme and its development through successive legislatures. As this court has explained before (and as discussed further below),
“If constitutionally required, considering the extent to which the defendant‘s character and baсkground, and the circumstance of the offense may reduce the defendant‘s moral culpability or blameworthiness for the crime, whether a sentence of death be imposed.”
Or Laws 1989, ch 790, § 135b (emphasis added). Also in 1989, the legislature created a statutory jury instruction pertaining to all four questions set out in
In 1991, the legislature amended
“In determining the issue in subparagraph (D) of paragraph (b) of this subsection, the court shall instruct the jury to answer the question ‘no’ if one or more of the jurors find there is any aspect of the defendant‘s character or background, or any circumstances of the offense, that one or more of the jurors believe would justify a sentence less than death.”
Or Laws 1991, ch 885, § 2.21
Turning to the original version of
In State v. Stevens, 319 Or. 573, 580-82, 879 P.2d 162 (1994), this court reviewed the legislative history of
The court in Stevens further explained that, shortly after the legislature had enacted
After reviewing the development of
“The passage of the original fourth question after Penry and the modification of that question following Wagner II make it clear that 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 Wagner II to satisfy the requirements of the Eighth Amendment to the Constitution of the United States. Accordingly, cases dealing with the Eighth Amendment fourth question and with the evidence relevant to that question inform our inquiry as to the scope of the evidence that is relevant under the statute.”
319 Or. at 582-83 (emphasis added). See also Guzek II, 322 Or. at 258 (citing Stevens for proposition that, in enacting fourth question, legislature was “attempting to bring Oregon‘s death penalty scheme in compliance with Penry“). The court in Stevens then went on to examine Supreme Court decisions that discussed the phrase “mitigating evidence relevant to a defendant‘s background and character or the circumstances of the crime,” 319 Or. at 583 (internal quotation marks omitted), as those decisions related to the evidentiary issue in Stevens.22
In sum, this court concluded in Stevens that, in using the phrase “any aspect of the defendant‘s character or background, or any circumstances of the offense” in the jury instruction set out in
We begin our discussion with the plurality decision in Lockett v. Ohio, 438 U.S. 586, 98 S. Ct. 2954, 57 L. Ed. 2d 973 (1978), which was a precursor to Penry. The defendant in Lockett was charged with aggravated murder resulting from a robbery of a pawnshop. According to the state‘s evidence, the defendant had participated with others in the planning of the robbery; however, she had remained in the car outside the pawnshop during the robbery and ensuing murder of the pawnbroker. During the guilt phase, defense counsel initially had argued that the defendant had been unaware that a robbery had takеn place; however, the defendant ultimately presented no evidence to rebut the state‘s case.23 The jury convicted the defendant of aggravated murder in the course of a robbery. From the jury instructions quoted in the plurality‘s opinion, it appears that the jury found that the defendant intentionally had participated in the robbery and that the circumstances of the robbery allowed the jury further to find, by operation of state law, that the defendant had intended to kill the pawnbroker. 438 U.S. at 589-93.
Various psychiatric and psychological reports then were prepared for a subsequent capital sentencing proceeding before a judge. Those reports, which contained, among other things, statements from a codefendant that the defendant had not participated in planning the robbery and had left the car to eat during the robbery, were admitted into evidence at sentencing. 438 U.S. at 594, 594 n. 2.
The applicable statutory scheme required the trial court to sentence the defendant to death unless it found, by a preponderance of the evidence, that one or more of three statutory mitigating factors applied, relating to the potential existence of duress, coercion, or provocation; the potential
Before the Supreme Court, the defendant argued that the statutory scheme violated the
“* * * [W]e conclude that the Eighth and Fourteenth Amendments require that the sentencer, in all but the rarest kind of capital case, [24] not be precluded from considering, as a mitigating factor, any aspect of a defendant‘s character or record and any of the circumstances of the offense that the defendant proffers as a basis for a sentence less than death.”
438 U.S. at 604 (first emphasis in original; second emphasis added). The plurality added that “[n]othing in this opinion limits the traditional authority of a court to exclude, as irrelevant, evidence not bearing on the defendant‘s character, prior record, or the circumstances of [the] offense.” Id. at 604 n. 12.
The plurality then evaluated the statutory scheme at issue in light of the foregoing rule and concluded that, in permitting the consideration of only three specific mitigating factors, that scheme violated the
“[t]he absence of direct proof that the defendant intended to cause the death of the victim is relevant for mitigating purposes only if it is determined that it sheds some light on one of the three statutory mitigating factors. Similarly, consideration of a defendant‘s comparatively minor role in the offense, or age, would generally not be permitted, as such, to affect the sentencing decision.”
Id. at 608 (emphasis added).
Before the Supreme Court, the defendant argued that his youth, his cooperation with the police, and “the lack of proof that he had participated in the actual killing strongly supported an argument for a penalty less than death.” Id. at 641-42. A plurality of the Court agreed that, under Lockett, the defendant‘s sentence violated the
Almost four years after Lockett and Bell, a majority of the Supreme Court adopted and applied the rule set out in those cases, that is, that “the Eighth and Fourteenth Amendments require that the sentencer * * * not be precluded from considering, as a mitigating factor, any aspect of a defendant‘s character or record and any of the circumstances of the offense that the defendant proffers as a basis for a sentence less than death.” Eddings v. Oklahoma, 455 U.S. 104, 110, 102 S. Ct. 869, 71 L. Ed. 2d 1 (1982) (quoting Lockett, 438 U.S. at 604 (ellipsis in Eddings; original emphasis omitted)). In adopting
Lockett and its progeny stand for the proposition that, under the
The foregoing reading of Lockett and Bell generally supports the admission of defendant‘s alibi evidence, because that evidence concerned “circumstances of the offense” (i.e., defendant‘s professed lack of involvement, notwithstanding his earlier murder convictions) that, if believed, would have mitigated against imposition of the death penalty. However, we acknowledge that the juries in Lockett and Bell appear to have based their respective guilty verdicts for capital murder on factual findings that the defendants actively had participated in the underlying felonies of aggravated robbery (Lockett) and aggravated kidnapping (Bell), which, by operation of state law, allowed the juries also to find the defendants guilty of capital murder. Such guilt-phase findings therefore would have left open the possibility that proffered sentencing-phase evidence that the defendants had not intended to kill the victims, or otherwise had played only peripheral parts in the underlying felonies (although with the requisite intent respecting those felonies), would mitigate against imposition of the death penalty, notwithstanding the
However, the foregoing factual distinction between Lockett and Bell, on the one hand, and the case at bar, on the other, is of no consequence in light of the Supreme Court‘s decision in Green v. Georgia, 442 U.S. 95, 99 S. Ct. 2150, 60 L. Ed. 2d 738 (1979), issued the year after Lockett and Bell. The defendant in Green had been convicted of murder, as had a codefendant. Unlike the defendants in Lockett and Bell, it appears that the defendant in Green had been convicted of the murder itself—that is, of the intentional killing of the victim—rather than of more limited, intentional participation in an underlying capital felony.26 At sentencing, the defendant sought to introduce testimony of a third person that the codefendant had stated to that person that the codefendant had killed the victim after sending the defendant on an errand. The defendant had not sought to introduce that testimony during the guilt phase of his trial. The trial court excluded the evidence on hearsay grounds, and the Georgia Supreme Court affirmed. 442 U.S. 95-96; Green v. State, 242 Ga. 261, 272-73, 249 S.E.2d 1, 9-10 (1978).27
“Regardless of whether the proffered testimony comes within Georgia‘s hearsay rule, under the facts of this case its exclusion constituted a violation of the Due Process Clause of the Fourteenth Amendment. The excluded testimony was highly relevant to a critical issue in the punishment phase of the trial, see Lockett * * *, 438 US * * * [at] 604-05 * * *, and substantial reasons existed to assume its reliability.”28
Id. at 97 (emphasis added). Thus, in Green, the Supreme Court concluded that, under Lockett, the defendant‘s evidence that he had not participated in the murder was a relevant circumstance of the offense that the sentencer must consider, notwithstanding that the defendant already had been convicted of the victim‘s murder.
As can be seen, the facts of Green appear to be analogous to the facts at issue here. As in Green, defendant here already had been convicted of the murders of the victims, and, notwithstanding those earlier convictions, defendant sought to introduce evidence at his third penalty-phase proceeding—which he did not seek to introduce during the guilt phase—that, if believed, would have shown that he had not been present at the victims’ home at the time of the murders. Applying the Court‘s reasoning in Green, we conclude that such evidence was “highly relevant to a critical issue” in the рenalty phase, 442 US at 97, and therefore was required to be considered by the jury under the
V. CONCLUSION
As the state concedes, the trial court erred in refusing to instruct the jury respecting the true-life sentencing option, after defendant waived any ex post facto challenges to that option under
that the defendant in Green unconstitutionally had been denied a fair trial. Green, 442 US at 97.
However, the fact that the Supreme Court ultimately relied on the
Further, in any subsequent penalty-phase proceeding, if defendant offers evidence of inconsistent statements by state witnesses to impeach their testimony, then the trial court must determine whether that evidence has a nonhearsay purpose. If it does, then the evidence may not be excluded on the basis of the hearsay rule alone. Finally, under the “mitigating evidence” provisions of
We have reviewed the remaining assignments of error and have concluded that they are without merit or are unlikely to arise on remand. Further discussion of those assignments would not benefit the bench, bar, or public.
The sentence of death is vacated, and the case is remanded to the circuit court for further proceedings.
I concur in Justice Riggs‘s opinion for the court, which vacates the sentence of death and remands the case for further proceedings.
The opinion correctly answers several questions that are likely to arise on remand if the state elects, under
The court‘s opinion does not address another argument that defendant raises that, if sustained, would obviate the need for a new sentencing proceeding. Defendant urges this court to reconsider and overrule its decision in State v. Wagner, 309 Or 5, 786 P2d 93 (1990) (Wagner II). According to defendant, when these murders occurred in 1987, Oregon‘s 1985 death-penalty statute was in effect and is applicable to this case. Defendant argues that that statute contained no provision requiring the factfinder to consider any mitigating circumstances regarding the murders. For that reason, defendant asserts, Oregon‘s 1985 statute violated pertinent federal constitutional principles and does not authorize imposition of a sentence of death in this case. See Penry v. Lynaugh, 492 US 302, 109 S Ct 2934, 106 L Ed 2d 256 (1989) (holding that similar Texas statute did not authorize sentence of death, because it lacked provision requiring consideration of mitigation factors).
I previously have expressed the view that the court wrongly decided Wagner II and that the court should reconsider that decision. State v. Montez, 324 Or 343, 346-47 n 5, 927 P2d 64 (1996); State v. Pinnell, 319 Or 438, 449, 887 P2d 635 (1994) (Durham, J., dissenting). I adhere to that view. The reasoning that the court adopted in Wagner II is indefensible and warrants no deference under this court‘s doctrine of stare decisis.
Wagner II, however, is not the last word on this subject. Since this court issued that decision, the legislature has amended
The court is in no position to disregard the legislature‘s later enactments unless the parties’ briefing demonstrates that the legislature has exceeded its authority or otherwise has failed to meet constitutional requirements. In regard to Wagner II, defendant must demonstrate not only that this court wrongly decided Wagner II, but also that the error entitles him to a different disposition notwithstanding the legislature‘s later attempts to fix the problem. The parties’ briefing does not sufficiently address, and the court‘s opinion does not decide, that question.
I agree with the court‘s decision not to address whether the error in Wagner II requires a different result in this case. From this vantage point, the court cannot determine with certainty that the dispute over Wagner II is likely to arise on remand. If it does arise, then the parties should address in detail the issues discussed in this opinion.
I concur.
GILLETTE, J., concurring in part and dissenting in part.
I join all of the majority opinion in this unfortunate case except for the majority‘s regrettable discussion and disposition of defendant‘s assignment of error respecting the trial court‘s refusal to permit him to present certain “alibi” evidence. As to that subject, and contrary to the majority, I believe that the trial court‘s ruling excluding that evidence was precisely correct. I therefore respectfully dissent from that part of the majority opinion.
One piece of context for the majority‘s analysis of the problem—and of mine—cannot be overemphasized. The jury in this case was empaneled to decide only whether this defendant should receive the death penalty; the question whether defendant was personally, criminally responsible for the
As the majority explains, 336 Or at 450, defendant in this case proffered evidence from two relatives to the effect that defendant could not have been one of the murderers, because he was elsewhere at the time. That is, he offered evidence that, in spite of the aforementioned jury verdict to the contrary, he was innocent of the crimes.
Defendant offered that evidence as “mitigating evidence” under
“The court shall instruct the jury to answer the question in paragraph (b)(D) of this subsection ‘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 * * * one or more of the jurors believe that the defendant should not receive a death sentence.”
The majority first divides the proffered evidence into two separate categories. 336 Or at 451. Respecting the testimony of defendant‘s grandfather, defendant offered the transcript of the grandfather‘s testimony from a previous trial of the case. The trial court refused to admit it. As the majority correctly notes,
I disagree that the trial court erred, because it is not clear to me that the statute automatically makes admissible all evidence, whatever its subject matter, from prior trials. The statute provides, in part, that, in a new sentencing proceeding:
“A transcript of all testimony and all exhibits and other evidence properly admitted in the prior trial and sentencing proceeding are admissible in the new sentencing proceeding. Either party may recall any witness who testified at the prior trial or sentencing proceeding and may present additional relevant evidence.”
The focus of the majority‘s analysis is the testimony of defendant‘s mother, which had not been offered previously and which, like that of the grandfather, would (if believed) be wholly exculpatory. The majority does an admirable job of tracing the lineage of the wording of
In my view, there is no clear binding authority respecting the issue. A majority of the Supreme Court never has dealt with the question. However, a four-judge plurality of that Court did address an analogous issue in 1988 in a way that is (in my view) so clear (and so clearly right) that I am content simply to adopt the plurality‘s view now:
“At the outset, we note that this Court has never held that a capital defendant has a constitutional right to an instruction telling the jury to revisit the question of his identity as the murderer as a basis for mitigation. Petitioner suggests that our discussion of the ‘residual doubt’ question in Lockhart v. McCree, 476 US 162, 180-182, [106 S Ct 1758, 90 L Ed 2d 137] (1986), supports his position that he has such an entitlement. * * * But all that this aspect of the Lockhart opinion stands for is the simple truism that where ‘States are willing to go to allow defendants to capitalize on “residual doubts,“’ such doubts will inure to the defendant‘s benefit. Lockhart, supra, at 181. Lockhart did not endorse capital sentencing schemes which permit such use of ‘residual doubts,’ let alone suggest that capital defendants have a right to demand jury consideration of ‘residual doubts’ in the sentencing phase. Indeed, the Lockhart dissent recognized that there have been only a ‘few times in which any legitimacy has been given’ to the notion that a convicted capital defendant has a right to argue his innocence during the sentencing phase. 476 US, at 205-206 (Marshall, J., dissenting). The dissent also noted that this Court has not struck down the practice in some States of prohibiting the consideration of ‘residual doubts’ during the punishment trial. Ibid.”
Franklin v. Lynaugh, 487 US 164, 172-73, 108 S Ct 2320, 101 L Ed 2d 155 (1988) (White, J., plurality opinion) (emphasis in original) (footnote omitted). That is the line that this court should follow, unless and until the Supreme Court, forced to face the issue, tells us that we are wrong.
The majority argues that it has found a contrary holding in the Court‘s brief, eight-to-one per curiam decision in Green v. Georgia, 442 US 95, 99 S Ct 2150, 60 L Ed 2d 738 (1979), but I find it impossible to imagine how, nine years later, four members of the Court could say what they said in Lynaugh, if this court‘s majority correctly understands Green. In my view, as еxplained below, this court‘s majority has not correctly understood Green.
The majority explains that, in Lockett v. Ohio, 438 US 586, 98 S Ct 2954, 57 L Ed 2d 973 (1978), and Bell v. Ohio, 438 US 637, 98 S Ct 2977, 57 L Ed 2d 1010 (1978), a plurality of the Supreme Court held that the
There are three problems with placing Green so prominently within the Court‘s
I begin with the majority‘s first major premise, which is that “the defendant in Green had been convicted of the murder itself—that is, of the intentional killing of the victim—rather than of more limited, intentional participation in an underlying capital felony.” 336 Or at 461. The Supreme Court‘s opinion in Green suggests otherwise. In the factual description of the case, the Court states that “[t]he evidence at trial tended to show that petitioner and Moore abducted Allen from the store where she was working alone and, acting either in concert or separately, raped and murdered her.” Green, 442 US at 96 (emphasis added). The Court‘s disjunctive description indicates that the defendant in Green was tried for murder either as one of the killers or as a participant in the underlying felony, as was possible under the Georgia murder statute. See Scott v. State, 252 Ga 251, 252, 313 SE2d 87, 88 (1984) (explaining that, under Georgia Code Annotated 26-1101, a defendant may be convicted of felony murder when “acting in concert” with a codefendant in committing a crime and a death occurred). The Court‘s description also echoes in general the elements of felony murder—the defendant, or someone acting in concert with the defendant, caused the death of another person during the course of committing a felony. See, e.g., Erwin S. Barbre, Annotation, Criminal Liability Where Act of Killing Is Done by One Resisting Felony or Other Unlawful Act Committed by Defendant, 56 ALR3d 239, 249 (1974) (discussing cases holding that “in order to convict a defendant under the felony-murder rule the act of killing must be that of defendant and
That approach would make sense from the state‘s perspective in Green. The state had clear evidence of defendant‘s participation in the kidnapping and the acts taken in concert with his codefendant. Once the murder conviction was secured, the state then could argue—as it did during the penalty phase—that the defendant was directly involved in shooting the victim because she suffered two wounds, and the defendant should receive the death penalty for his participation in the killing. Green, 442 US at 96 n 2. That argument by the state would have been unnecessary if the guilt-phase jury—which also sat during the penalty phase—already had found that Green was directly responsible for the victim‘s death.
Green also cites both the Lockett plurality and Justice Blackmun‘s concurrence. Green, 442 US at 97 (citing Lockett, 438 US at 604-05; id. at 613-16 (Blackmun, J., concurring)). The Court‘s citation to Justice Blackmun‘s concurrence is revealing, because, in Lockett, Justice Blackmun took a narrower approach than the plurality. He would have held only that a state court may not sentence an aidеr-and-abettor to death without allowing the sentencer to consider the extent of that person‘s involvement, and degree of mens rea, in the commission of the homicide. Lockett, 438 US at 614. By citing Justice Blackmun‘s concurrence and its discussion of aiding-and-abetting liability, the Court reveals that the “critical issue” in Green is whether a defendant—who, along with a codefendant, has been found guilty of murder—may show that his relative culpability for the crime is minimal because he neither participated in the killing nor intended it to occur.
The majority asserts that, because neither the state lower courts nor the Supreme Court suggested otherwise, the defendant in Green must have been indicted and convicted for intentionally killing the victim. 336 Or at 461 n 26. I do not find that inference from silence persuasive. In my view, unlike defendant in this case, the Court did not view the
I turn to my second disagreement with the majority‘s application of Green. To make Green work, the majority not only must find a factual similarity between that case and this case; the majority also must decide that, as a matter of law, Green concluded that the
First, the quoted sentence does not identify the “critical issue” to which it refers. As explained above, the facts and procedural history of Green are sufficiently ambiguous to suggest that the Court viewed the excluded testimony as relevant because it showed that defendant was a minor participant in a crime for which he properly was held liable—again, an uncontroversial view after Lockett.
Moreover, Green does not mention the
Finally, the majority purports to find an
In sum, the legal discussion in Green (such as there is) provides no persuasive support for the view that the
As to my final disagreement with the majority‘s application of Green, I observe that the circumstances of Green also militate against the majority‘s interpretation of that case. The defendant in Green argued that he should have been allowed to offer in evidence a confession that his codefendant made to a third party, which indicated that the codefendant was solely responsible for the murder. According to the Court, under Georgia‘s evidence rules, the confession was admissible during the guilt phase of the codefendant‘s trial, and the state freely relied on it in winning a conviction. When it came time for the defendant to use the same confession during the penalty phase of his trial, however, the state argued that it was inadmissible hearsay. The trial court accepted that theory, and then the state expressly invited the penalty-phase jury to infer that the defendant was a direct participant in the killing. Thus, the mechanistic application of the hearsay rule deprived the defendant of presenting not only effective evidence regarding his lack of culpability, but evidence that would counter an express argument that the state had made during the penalty phase.
Faced with such a “heads we win, tails you lose” interpretation in a death-penalty case, the Court summarily granted certiorari, vacated the opinion below without argument, and issued a short, three-paragraph per curiam opinion that relied on Chambers to hold that the state‘s approach to the hearsay rule violated the
Those circumstances demonstrate to me that Green is a species of “shocks-the-conscience” opinion. The Court simply was not going to let the State of Georgia get away with that approach in a death-penalty case. Thus, I am not persuaded that Green resolves whether certain alibi evidence is relevant and must be admitted pursuant to the
Outside of its troubling reliance on Green, the majority faces an additional problem: Supreme Court cases discussing “residual doubt” arguments strongly suggest that alibi evidence is not relevant to a “circumstance of the offense” and, therefore, the
In Lockhart v. McCree, 476 US 162, 106 S Ct 1758, 90 L Ed 2d 137 (1986), the Court held that it was constitutionally permissible to exclude jurors who objected to imposing the death penalty prior to the guilt-phase of defendant‘s trial. To support that holding, Justice Rehnquist cited capital defendants’ interest in having a unitary jury to which they could argue “residual doubt.” Id. at 181. In dissent, Justice
As I have noted, Franklin confirms that impression. In Franklin, the plurality suggested in the strongest terms that a defendant had no constitutional right to argue, during the penalty phase, that the defendant‘s life should be spared because there was a possibility that he was innocent:
“At the outset, we note that this Court has never held that a capital defendant has a constitutional right to an instruction telling the jury to revisit the question of his identity as the murderer as a basis for mitigation. Petitioner suggests that our discussion of the ‘residual doubt’ question in [Lockhart] supports his position that he has such an entitlement. * * * But all that this aspect of the Lockhart opinion stands for is the simple truism that where ‘States are willing to go to allow defendants to capitalize on “residual doubts,“’ such doubts will inure to the defendant‘s benefit. Lockhart did not endorse capital sentencing schemes which permit such use of ‘residual doubts,’ let alone suggest that capital defendants have a right to demand jury consideration of ‘residual doubts’ in the sentencing phase. Indeed, the Lockhart dissent recognized that there have been only a ‘few times in which any legitimacy has been given’ to the notion that a convicted capital defendant has a right to argue his innocence during the sentencing phase. The dissent also noted that this Court has not
struck down the practice in some States of prohibiting the consideration of ‘residual doubts’ during the punishment trial. “Our edict that, in a capital case, ‘“the sentencer * * * [may] not be precluded from considering, as a mitigating factor, any aspect of a defendant‘s character or record and any of the circumstances of the offense,“’ in no way mandates reconsideration by capital juries, in the sentencing phase, of their ‘residual doubts’ over a defendant‘s guilt. Such lingering doubts are not over any aspect of petitioner‘s ‘character,’ ‘record,’ or a ‘circumstance of the offense.’ This Court‘s prior decisions, as we understand them, fail to recognize a constitutional right to have such doubts considered as a mitigating factor.”
Franklin, 487 US at 172-74 (footnotes and citations omitted) (emphasis in original).
Justice O‘Connor would have reached the constitutional issue directly and precluded any consideration of residual doubt as a mitigating factor. Id. at 187 (O‘Connor, J., concurring) (“Our cases do not support the proposition that a defendant who has been found to be guilty of a capital crime beyond a reasonable doubt has a constitutional right to reconsideration by the sentencing body of lingering doubts about his guilt.“).
I acknowledge that Franklin and Lockhart do not dictate the outcome here. Lockhart‘s discussion is dicta, and a strict view of Franklin‘s actual holding is that a defendant does not have a constitutional right to a jury instruction specifically calling attention to any lingering doubts about defendant‘s guilt. Neither case delineates the scope of evidence that a jury must be allowed to consider at the penalty phase.
Nevertheless, Franklin and Lockhart shed light on the Court‘s view of whether evidence suggesting that defendant may be innocent is relevant mitigating evidence under its interpretation of Lockett and its progeny. Franklin suggests that, just as residual doubt is not a constitutionally mandated mitigating factor that a jury must be allowed to consider, the Court also would hold that evidence intended to raise residual doubts about the defendant‘s guilt is not relevant to any constitutionally mandated mitigating factor. In
I therefore disagree with the majority‘s attempt to minimize the significance of Franklin. 336 Or at 463 n 30. Franklin is not simply a jury instruction case, as suggested by the majority. Rather, by discussing the scope of what constitutes a “circumstance of the offense,” a majority of the Court necessarily communicated its view regarding the relevance under the
Other than that footnote, the majority does not address the concept of residual doubt. As I understand its view, the majority today holds that, as a matter of federal constitutional law, defendant‘s alibi evidence must be admitted as relevant to the mitigating factor of “circumstances of the offense,” but the opinion need not and does not decide that the
In order to be admitted, the defendant‘s alibi evidence must be “relevant mitigating evidence.”3 Eddings, 455 US at 114. In my view, the alibi evidence in this case is “relevant” and “mitigating” only in the sense that it challenges the accuracy of the underlying guilty verdict. It is intended to create or play upon any lingering doubts that the jury might have about the evidence that was used to convict the defendant. The alibi evidence does not describe the reason that
The proposed testimony, therefore, is distinguishable from the evidence offered in Lockett, Bell, and Green. In those cases, the evidence concerned facts about the commission of the crime. See, e.g., Bell, 438 US at 642 (holding that the
In the present case, the alibi evidence is not related to any mitigating fact that informs the jury‘s consideration of
This defendant has been adjudged guilty of the two murders in question. Whatever the concept of “any aspect of the defendant‘s character or background, or *** circumstance of the offense” may encompass, I cannot in reason believe that the Supreme Court, when faced with the issue directly, would hold that it encompasses revisiting the issue of guilt or innocence of the underlying offense.5 The majority‘s contrary conclusion is wrong.
I respectfully dissent.
Carson, C. J., joins in this separate opinion.
Notes
Carmell, 529 U.S. at 522 n. 9 (quoting Calder, 3 U.S. (Dall.) at 389). In Stogner v. California, 539 U.S. 607, 123 S. Ct. 2446, 2452, 156 L. Ed. 2d 544 (2003), the Supreme Court quoted Calder‘s alternative wording with approval in determining that a retroactive statute of limitations extension likely would fall into the fourth category. See also id. at 2450-52 (applying alternative wording of second category to invalidate extended statute of limitations at issue), 2458 (citing Carmell for proposition that Calder‘s alternative descriptions remain viable).“[Ex post facto laws] violated the rules of evidence, to supply a deficiency of legal proof, by admitting one witness, when the existing law required two; by receiving evidence without oath; or the oath of the wife against the husband; or othеr testimony which the courts of justice would not admit.”
Or Laws 1997, ch 784, § 1 (emphasis added). That 1997 version of“The court shall instruct the jury to answer the question in paragraph (b)(D) of this subsection ‘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 subsection (1)(a) of this section, one or more of the jurors believe that the defendant should not receive a death sentence.”