State v. GuzekState v. Guzek
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- Before:
- Carson
Lead Opinion
This сase is before us on automatic and direct review of a judgment that imposed a sentence of death for aggravated murder. Former
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, “stalkfing]” 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 Housers’ home instead. The three men then went to defendant’s home, obtained a rifle and a pistol, and went to the Housers’ home with the intention of killing the Housers and stealing their property.
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
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, reh’g den, 483 US 1056 (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, reh’g den, 501 US 1277 (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,
After a third penalty-phase proceeding, defendant again was sentenced to death. That sentence is before us now.
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”). Former
In his third penalty-phase proceeding, defendant 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.
After a jury again sentenced defendant to death, this court explained that a criminal defendant may waive protection from ex post facto laws, including the protection against the application of a later-enacted version of the death-penalty statutory scheme. State v. McDonnell, 329 Or 375, 388, 987 P2d 486 (1999). This court reiterated those principles in State v. Langley, 331 Or 430, 439, 16 P3d 489 (2000). Accordingly, as the state recognizes, the trial court’s decision not to instruct the jury regarding the true-life sеntencing option was reversible error. We therefore must vacate defendant’s sentence of death and remand for further proceedings.
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 any, by the deceased.”7
The state was required to prove affirmative answers to those questions beyond a reasonable doubt. See former
Before defendant’s second penalty-phase proceeding, the 1989 Legislative Assembly enacted a “fourth question,” set out at
Before defendant’s third penalty-phase proceeding, the 1995 Legislative Assembly amended the death-penalty statutory scheme expressly to permit the introduction of relevant “aggravating” evidence and victim-impact evidence, adding the following text to
“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 (l)(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
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 Article I, section 21, applies to only those changes in the rules of evidence that make conviction more likely. Therefore, the state contends, that prohibition does not apply to changes in the law concerning the admissibility of evidence in penalty-phase proceedings, because such proceedings are sentencing proceedings only. Alternatively, the state argues that the 1995 and 1997 amendments to
We begin with the discussion of Article I, section 21, that this court offered in Fugate. In that case, this court reiterated that Article I, section 21, prohibits the application of the types of laws that the framers of the Oregon Constitution understood to be prohibited by the Ex Post Facto Clause of the United States Constitution. 332 Or at 214. Those laws fall into the four categories that Justice Chase identified in his opinion in Calder v. Bull, 3 US (3 Dall) 386, 390-91, 1 L Ed 648 (1798), quoted in Fugate, 332 Or at 212:
“ ‘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.’ ”
(Emphasis in Fugate.) In Fugate, this court explicitly held what it had implied in an earlier decision, State v. Cookman, 324 Or 19, 31, 920 P2d 1086 (1996), namely, that Article I, section 21, prohibited laws that fit within the “fourth category” of Colder, that is, “laws that alter the rules of evidence in a one-sided way that makes conviction of the defendant more likely.” Fugate, 332 Or at 213.
As noted above, the state first seeks to distinguish the “any aggravating evidence” provisions of the 1995 and 1997 amendments to
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 explainеd 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 Article I, section 21.
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
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 сharacteristics 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 Article I, section 42, of the Oregon Constitution as a legislatively referred constitutional amendment in 1999. Among other things, that amendment provided that crime victims have “[t]he right * * * to be heard at * * * the sentencing * * * disposition [.]” Or Const, Art I, § 42(l)(a). The amendment further provided that the rights set out therein applied to all criminal proceedings “pending or commenced on or after” the effective date of the amendment, that is, December 2, 1999. Or Const, Art I, § 42(2).
The state’s argument that, on remand, Article I, section 42(l)(a) will require admission of relevant victim-impact evidence against defendant presents a two-part question. First, we must determine whether the state’s offering of the type of victim-impact evidence that the 1995 amendment to
We begin with the text of Article I, section 42. See Shilo Inn v. Multnomah County, 333 Or 101, 116-17, 36 P3d 954 (2001), modified on recons on other grounds, 334 Or 11, 45 P3d 107 (2002) (when interpreting referred constitutional provision, court’s task is to discern intent of voters; best evidence of voters’ intent is text of provision). It provides, in part:
“(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 and juvenile court delinquency proceedings are conducted to seek the truth as to the defendant’s innocence or guilt, and also to ensure that a fair balance is struck between the rights of crime victims and the rights of criminal defendants in the course and conduct of criminal and juvenile court delinquency proceedings, the following rights are hereby granted to victims in all prosecutions for crimes and in juvenile court delinquency proceedings:
“(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‘,
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“(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:
«H« Hi * * Hi
“(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 Article I, section 42, permits us to answer the first question quickly.
Because, as noted above, Article I, section 42, “applies to all criminal * * * procеedings pending or commenced on or after” December 2, 1999, it follows that the Housers’ family members will have the right in any subsequent penalty-phase proceeding in this case to offer evidence of the Housers’ personal characteristics and of the impact of the crimes on their family. That conclusion conflicts with defendant’s contention that Article I, section 21, insulates him from the introduction of victim-impact evidence through its prohibition against ex post facto laws. Accordingly, assuming, without deciding, that defendant is correct respecting the applicability of Article I, section 21, we must determine which “right” will govern the question of the admissibility of victim-impact evidence in any further proceeding in this case: the victims’ right to be heard or defendant’s right to be free from application of an ex post facto law. To answer that question, we again turn to the text of the Article I, section 42.
Article I, section 42(2), provides, in part:
“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 Article I, section 42, does not “reduce [ ]” a defendant’s federal constitutional rights and that it supersedes any conflicting section of the Oregon Constitution, that text anticipates that the victim’s right to be heard might be incompatible with a criminal defendant’s constitutional right in a particular case. At the same time, the text establishes that the voters intended the anticipated conflict to be resolved in one of two ways, depending on the source of the criminal defendant’s conflicting right.
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, Article I, section 42, provides that it will supersede any conflicting section of the Oregon Constitution. Read in context, that statement makes clear that, in the event of a conflict between a victim’s right to be heard under Article I, section 42(l)(a), and a criminal defendant’s right under the Oregon Constitution, it is the victim’s right that has constitutional priority.
Applying the foregoing understanding of Article I, section 42, to this case, we conclude the following. In a subsequent death-penalty proceeding in this case, the Housers’ family members will have the right under Article I, section 42(l)(a), to offer relevant victim-impact evidence as described in the 1995 amendment to
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 Article I, section 10, of the United States Constitution, the Supreme Court relies on Colder’s categories. The Court, like this one, has held that alterations to the rules of evidence in a manner that makes conviction more likely fall into the fourth category of laws under Colder that violate ex post facto principles. Carmell, 529 US at 522-25.14 However, the Court has offered a specific interpretation, as a matter of federal constitutional law, of the kind of change in the rules of evidence that facilitates an easier conviction. Under Article I, section 10, as the Court explained in Carmell, a change in the rules of evidence that facilitates an easier conviction — like changes in the law relating to Colder’s first three categories — is one that “subverts the presumption of innocence.”15 Id. at 532. Specifically, the evidentiary change must be one that alters the sufficiency-of-evidence standard or otherwise “reduc[es] the quantum of evidence necessary to meet the burden of proof’ to convict. Id. at 532-33. Applying that standard to a penalty-phase proceeding, we construe it as a standard that focuses on whether the change in the law lowers the minimum quantum of evidence required to obtain a sentence of death.
With that standard in mind, we again turn to the 1995 and 1997 amendments to
«* * * 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.”
Id. (emphasis in original). Accordingly, the admission of victim-impact evidence against defendant under the 1995 and 1997 amendments to
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 Fifth Amendment not to testify. The trial court determined that Cathey and Wilson were unavailable as witnesses, as described in OEC 804(1), and it permitted the state to introduce the transcripts of their prior testimony.16
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
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 OEC 801(3) (“ ‘Hearsay’ is a statement, other than one made by the declarant while testifying * * *, offered in evidence to prove the truth of the matter asserted.”). Instead, defendant argues that his proffered evidence of inconsistent statements by Wilson and Cathey was “very powerful” impeachment evidence, in other words, that it tended to show that the jury should not trust Wilson’s and Cathey’s transcript testimony about defendant’s role in the murders. Because defendant offered his evidence for that purpose, it did not qualify as hearsay, and the trial court erred by excluding it on that basis.18
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 P2d 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 P2d 853 (1994) (context includes “statute’s development through successive legislatures”).
We begin by setting out the relevant parts of the death-penalty statutory scheme.
“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 presentation of the evidence, the court shall submit the following issues to the jury:
<<**** *
“(D) Whether the defendant should recеive 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 background, and the circumstance of the offense may reduce the defendant’s moral culpability or blamewоrthiness 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 thejury 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 P2d 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 US 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 unawаre that a robbery had taken 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
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 US 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 existence of psychosis or mental deficiency; and the potential role of the victim in the offense. Finding that none of those factors applied (particularly, the “psychosis or mental defect” factor), the trial court sentenced the defendant to death. 438 US at 593-94.
Before the Supreme Court, the defendant argued that the statutory scheme violated the Eighth Amendment. After reviewing its jurisprudence, a plurality of the Court stated:
“* * * [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 US 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 Eighth Amendment. Specifically, under the scheme,
“[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).
In a companion case issued the same day, Bell v. Ohio, 438 US 637, 98 S Ct 2977, 57 L Ed 2d 1010 (1978), the same plurality vacated a death sentence imposed on another defendant under the same state statutory scheme. A jury had convicted the defendant in Bell of aggravated murder in the course of a kidnapping.25 Among other things, the reports submitted at his sentencing hearing noted the defendant’s claim that he had not been aware of the codefendant’s actions when the codefendant had killed the victim and also noted that the defendant allegedly had been taking mescaline on the night of the crimes. Also at sentencing, the defendant testified that he had been under the influence of drugs on the night of the crimes and that he had gone along with the codefendant because he had been afraid. Finding that none of the statutory mitigating factors applied, the trial court sentenced the defendant to death. Bell, 438 US at 639-41.
Before the Supreme Court, the defendant argued that his youth, his cooperation with the police, and “the lack of proof that he had
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 US 104, 110, 102 S Ct 869, 71 L Ed 2d 1 (1982) (quoting Lockett, 438 US at 604 (ellipsis in Eddings‘, original emphasis omitted). In adopting that rule, the court noted that, “[i]n some cases, such evidence properly may be given little weight.” Id. at 115.
Lockett and its progeny stand for the proposition that, under the Eighth Amendment, a court must allow a defendant to present at sentencing, and a sentencer must be able to consider, any evidence relevant to any circumstances of the offense that mitigates against imposition of the death penalty. As demonstrated by Lockett and Bell, that includes evidence that a defendant played an insignificant role in the offense or otherwise possessed a less culpable mens rea, notwithstanding an earlier guilt finding of intentional participation in capital murder. Further, the Court’s statement in Eddings, 455 US at 110, that a sentencer is free to accord a defendant’s proffered mitigating evidence little weight clarifies that evidence that is not particularly trustworthy still is admissible under the command of the Eighth Amendment if it is relevant to a defendant’s character or record, or to the circumstances of the offense. See also generally Sawyer v. Whitley, 505 US 333, 342-43, 112 S Ct 2514, 120 L Ed 2d 269, reh’g den, 505 US 1244 (1992) (.Lockett and its progeny hold that capital defendants permitted to introduce “wide variety of mitigating evidence”).
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 earlier capital murder convictions. Defendant in this case, by contrast, was convicted of the aggravated murders — defined in part as “intentionally” causing death,
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 US 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
In a brief per curiam, eight-to-one decision, the Supreme Court reversed. The Court stated:
“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 introducе 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 penalty phase, 442 US at 97, and therefore was required to be considered by the jury under the Eighth Amendment.29 It follows
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 Article I, section 21, of the Oregon Constitution and Article I, section 10, of the United States Constitution. In light of that error, we reverse defendant’s death sentence and remand for resentencing.
We further conclude that the prohibition against ex post facto laws contained in Article I, section 21, of the Oregon Constitution precludes the admission of “any aggravating evidence” against defendant under the current versions of
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, undеr 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.
Notes
This court’s authority to review sentences of death now is found in
The Eighth Amendment to the United States Constitution provides that “[ejxcessive bail shall not be required, nor excessive fines imposed, nor cruel and unusual punishments inflicted.” (Emphasis added.) The Eighth Amendment is applicable to the states through the Fourteenth Amendment. See Robinson v. California, 370 US 660, 667, 82 S Ct 1417, 8 L Ed 2d 758, reh’g den, 371 US 905 (1962) (so demonstrating).
The Supreme Court noted in Payne that that case did not involve evidence of the family’s opinions about the crime and about the appropriate sentence. 501 US at 830 n 2. Accordingly, the holding in Booth that that type of evidence constituted cruel and unusual punishment may remain valid after Payne.
In accordance with the statutory framework in place at that time, the trial court asked a general mitigation question in compliance with Wagner II. We discuss both the original and current versions of that question, set out at
Article I, section 21, of the Oregon Constitution provides, in part, that “[n]o ex-post facto law * * * shall ever be passed * * Article I, section 10, of the United States Constitution provides, in part, that “[n]o State shall * * * pass any * * * ex post facto Law * *
Those statutory provisions will govern defendant’s penalty-phase proceeding on remand. See
The current version of
As this court recently noted in Fanus, 336 Or at 66 n 4, the jury considers the third question set out in
That text remains in the current version of the statute. At the time of defendant’s crimes in 1987, that part of
“In the proceeding, evidence may be presented as to any matter that the court deems relevant to sentence!.]”
That rule provides that the Oregon Evidence Code does not apply in sentencing proceedings, “except proceedings under
The United States Supreme Court also has recognized that penalty-phase proceedings in capital trials are analogous to guilt-phase proceedings for the purpose of analyzing constitutional protections that must be afforded the accused. See, e.g., Strickland v. Washington, 466 US 668, 686-87, 104 S Ct 2052, 80 L Ed 2d 674, reh’g den, 467 US 1267 (1984) (concluding that capital sentencing proceedings under Florida law were indistinguishable from ordinary trial for purposes of right to counsel, because they were “sufficiently like a trial in [their] adversarial format and in the existence of standards for decision”). As the Court noted in its opinion in Monge v. California, 524 US 721, 731-32, 118 S Ct 2246, 141 L Ed 2d 615 (1998):
“The penalty phase of a capital trial is undertaken to assess the gravity of a particular offense and to determine whether it warrants the ultimate punishment; it is in many respects a continuation of the trial on guilt or innocence of capital murder.”
In the “preservation” section of his assignment of error challenging retroactive application of the “any aggravating evidence” provisions of the 1995 and 1997 amendments
We acknowledge the possibility that the evidence that defendant points to in his brief might have been admissible as evidence of “future dangerousness” under the second statutory question set out in
What we emphasize here is that the victim’s right to be heard must give way as a matter of Oregon constitutional law, because Article I, section 42(2), of the Oregon Constitution specifically provides for a criminal defendant’s federal constitutional rights not to be “reduce[d]” if in conflict with the victim’s right to be heard. It is of no consequence to our discussion that the victim’s right to be heard must give way in such circumstances as a matter offederal constitutional law, regardless of the wording of Article I, section 42.
The Supreme Court in Carmell also recognized that Justice Chase had set out alternative wording of the four categories of ex post facto laws identified in Colder. As to the fourth category, Justice Chase’s alternative wording provided:
“[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 other testimony which the courts of justice would not admit.”
Carmell, 529 US at 522 n 9 (quoting Colder, 3 US (Dall) at 389).
In Stogner v. California, 539 US 607, 123 S Ct 2446, 2452, 156 L Ed 2d 544 (2003), the Supreme Court quoted Colder’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).
In Fugate, this court specifically rejected that interpretation insofar as the Oregon Constitution is concerned. 332 Or at 213. As noted in Fugate, this court’s inquiry under Article I, section 21, concerns the understanding of the ex post facto prohibition that the framers of the Oregon Constitution had in mind. That understanding was influenced by Colder and by the interpretation of Colder that had been offered in 1822 by the Indiana Supreme Court in interpreting Article I, section 24, of the Indiana Constitution, on which Article I, section 21, of the Oregon Constitution is based. 332 Or at 211. The United States Supreme Court’s inquiry, by contrast, concerns the understanding of the ex post facto prohibition offered in Calder as further interpreted by the Court in its decisions over the course of two hundred years. See Carmell, 529 US at 525 (citing Court’s decisions from 1867 through 1997 that relied on Calder’s fourth category).
Defendant assigns error on review to the trial court’s admission of the Wilson and Cathey transcripts. We conclude that the trial court properly admitted those transcripts, and we decline to address defendant’s argument further here.
The trial court had several reasons for excluding the evidence at issue. We do not address each of those reasons; instead, we limit our discussion to the parties’ arguments respecting the admissibility of that evidence.
Of course, defendant’s evidence of inconsistent statements by Wilson and Cathey also had a possible hearsay purpose: To prove that defendant had not intended to kill the Housers before he had arrived at their residence or to prove that defendant had not played a leadership role in the murders. A limiting instruction to the jury that prior inconsistent statements by a witness are admissible solely for purposes of impeachment often assists in guarding against a jury using such statements for the wrong purpose.
We also note that our conclusion that defendant’s proffered evidence had a nonhearsay purpose does not require that that evidence be admitted at any subsequent penalty-phase proceeding. Whether the evidence is admissible in a subsequent proceeding will depend, first, on the purpose for which defendant offers it and, second, on the trial court’s evaluation of any objection that the state might raise. Our conclusion here is solely that we disagree with the state that defendant proffered evidence of inconsistent statements by Wilson and Cathey for a hearsay purpose only.
The parties do not cite to the record when referring to the trial court’s ruling in that regard. We also have not been able to confirm in the record the parties’ position that the trial court excluded the alibi evidence on relevance grounds. However, a precise description of the trial court’s actual ruling is not necessary to our opinion, because we focus on the issue as it may arise on remand.
“Any” is defined, in part, as follows:
“1 : one indifferently out of more than two : one or some indiscriminately of whatever kind; * * * b: one, no matter what one : EVERY — used as a function word esp. in assertions and denials to indicate one that is selected without restriction or limitation of choice * * * 3 a: great, unmeasured, or unlimited in amount, quantity, number, time, or extent: up to whatever measure may be needed or desired * * *[.]”
Webster’s Third New Int’l Dictionary 97 (unabridged ed 1993).
As discussed earlier in this opinion, the legislature in 1997 amended thejury instruction set out in
“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 (l)(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). That 1997 version of
As can be seen, the 1997 Legislative Assembly added the terms “aggravating evidence,” “mitigating evidence,” and “victim impact evidence” to thejury instruction accompanying the fourth question. However, the substance of the original wording of that instruction — “any aspect of the defendant’s character or background, or any circumstances of the offense” — remained unchanged after the 1997 amendment. As explained in the text below, that particular wording is drawn in its entirety from United States Supreme Court jurisprudence respecting mitigating evidence under the Eighth Amendment. That jurisprudence therefore informs our understanding of the parameters of that wording.
The issue in Stevens was whether testimony of the defendant’s wife regarding the potential effect on defendant’s daughter of imposition of the death penalty on defendant fell within the scope of “mitigating evidence relevant to the issue in [
The defendant had attempted to call two witnesses in her behalf; however, they both invoked the Fifth Amendment and did not testify. The defendant similarly invoked the Fifth Amendment. 438 US at 592-93.
The court cited as a possible exception an intentional homicide committed by a prisoner or escapee serving a life sentence. Lockett, 438 US at 604 n 11.
It appears that, similar to Lockett, the jury likely found the murder to have been intentional by operation of state law, stemming from its guilt finding on the kidnapping charge.
The Supreme Court’s decision stated that the defendant had been indicted, with a codefendant, of rape and murder, аnd had been convicted separately of murder. 442 US 95. Likewise, the Georgia Supreme Court decision subject to review, as well as that court’s decision following a new guilt-phase proceeding, both stated that the defendant had been convicted of murder, and the initial state court decision also discussed evidence of an admission on the defendant’s part that he personally had killed the victim. Green v. State, 242 Ga 261, 261, 249 SE2d 1, 3-4 (1978); Green v. State, 246 Ga 598, 598, 272 SE2d 475, 479 (1980). No description of the facts or procedural history by either court suggests that, like the defendants in Lockett and Bell, the defendant in Green had been indicted and convicted of murder on any felony-murder or aid-and-abet theory of guilt.
The Georgia Supreme Court surmised that the defendant had not introduced the disputed evidence during the guilt phase because that evidence would have demonstrated that the defendant “actively and knowingly [had] participated in the entire criminal enterprise!,] including the robbery, kidnapping, and rape of the victim,” as well as leaving the victim with the armed codefendant (who had made murderous statements to the defendant), helping to dispose of the victim’s body, and leaving the state with the victim’s car, the murder weapon, and part of the robbery proceeds. Oreen, 242 Ga at 272, 249 SE2d at 9.
The Court’s reference to, and subsequent discussion of, the “reliability” of the hearsay statement pertained to the parameters of the constitutionally based exception to the hearsay rule discussed in Chambers v. Mississippi, 410 US 284, 302, 93 S Ct 1038, 35 L Ed 2d 297 (1973).
The Supreme Court ultimately grounded its conclusion in Green in the Due Process Clause of the Fourteenth Amendment to the United States Constitution, in light of the Court’s application of the exception to the hearsay rule established in Chambers, 410 US at 302. In reaching that conclusion, the Court emphasized the fact that, contrary to its objection to the evidence at issue in mitigation in Green, the state had introduced the hearsay evidence at issue in aggravation in the capital trial of the Green defendant’s codefendant. In that connection, the Court concluded 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 Due Process Clause to reverse the defendant’s conviction in Green does not lessen the import of the Court’s citation to Lockett for the principle that the evidence at issue was “highly relevant” to a “critical issue” in the sentencing determination. Green, 442 US at 97. When read in full, the Court’s reasoning in Green can be broken down into the following analytical conclusions: (1) the Eighth Amendment required that the jury not be precluded from considering the defendant’s mitigating evidence respecting a circumstance of the offense — specifically, evidence that he was not present during the actual murder; (2) the evidence was supported by factors tending to establish its reliability; and (3) given that the evidence was relevant under the Eighth Amendment and sufficiently reliable, the Chambers hearsay exception applied. In short, notwithstanding its ultimate conclusion under the Due Process Clause, the Court’s reliance on Lockett was illustrative of its view that mitigating evidence under the Eighth Amendment includes evidence of a less-than-significant role in the capital offense, including evidence that a defendant previously convicted of murder was not present during the capital offense. Again, the Court made that point in the context of a case in which neither that Court nor the state supreme court had suggested that the defendant had been convicted on anything less than a theory of direct liability for murder.
We note that, in Franklin v. Lynaugh, 487 US 164, 172, 174, 108 S Ct 2320, 101 L Ed 2d 155, reh’g den, 487 US 1263 (1988), a plurality of the Supreme Court strongly suggested, and the concurrence would have held, that the Eighth Amendment does not require an instruction that a penalty-phase jury consider any residual or lingering doubts remaining from the guilt phase. Id. at 187-88 (O’Connor, J., concurring). However, nothing in that decision lessened the direction from Lockett, Bell, Eddings, and Green that the Eighth Amendment does require that a defendant be permitted to introduce, and a jury be able to consider, mitigating evidence relevant to any circumstances of the offense, such as evidence that would lessen the defendant’s culpability in the offense. Simply stated, a “residual” or “lingering doubt[ ]” remaining from the guilt phase, Franklin, 487 US at 174, is qualitatively different from actual “evidence” proffered during the penalty phase.
Concurrence Opinion
concurring.
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 IT). According to defendant, when thesе 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.
Concurrence Opinion
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
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 deaths of the two victims had already been established by a separate jury trial, and that verdict had been affirmed on appeal. See State v. Guzek, 310 Or 299, 304, 797 P2d 1031 (1990) (affirming defendant’s convictions for two counts of aggravated murder). For various reasons, defendant’s sentence of death for those two murders has twice been reversed, and the present appeal is from the third jury verdict determining that defendant should receive the death penalty.
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 explained 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 Eighth and Fourteenth Amendments require that a sentencing jury be allowed to consider, “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
There are three problems with placing Green so prominently within the Court’s Eighth Amendment-Loc&eii jurisprudence. First, I disagree with the conclusion that the defendant in Green, like defendant in this case, sought to introduce evidence that contradicted the jury’s guilt-phase findings and would have led to an acquittal. Second, the citation to Lockett reflects nothing more than the Court’s conclusion that the defendant sought to introduce evidence about his minor participation in the actual killing of the victim, which was precisely the type of evidence made relevant by both the plurality and concurring opinions in Lockett. Third, the circumstances surrounding Green and its actual holding minimize its significance as a useful precedent for this case.
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 participаtion 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 to be his act, the act must be committed by defendant or one acting in concert with him”) (emphasis added). Thus, the Court may have thought that the defendant in Green was convicted on a felony-murder theory.
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
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 aider-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 defendant in Green as attempting to challenge his liability for the crime. Rather, just as in Lockett, the defendant in Green attempted to reduce, but not eliminate, his relative culpability by arguing that he did not intend the killing to occur. Under that more limited reading, which I think accurately describes the Court’s understanding of the facts before it, the majority’s effort to place Green in the same factual posture as the present case fails.
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 Eighth Amendment requires that, if offered, certain exculpatory evidence must be submitted at the penalty phase. To that end, the majority relies on the following sentence: “The excluded testimony was highly relevant to a critical issue in the punishment phase of the trial, see [Lockett, 438 US at 604-05] (plurality opinion); id., at 613-616 (opinion of Blackmun, J.), and substantial reasons existed to assume its reliability.” Green, 442 US at 97. The majority’s reliance on that sentence for its view of Green’s legal conclusion is unavailing.
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 Eighth Amendment, and the citation to Lockett comes within the context of a discussion of the relevance and reliability of the proffered testimony. As I read the Court’s opinion, Green’s citation to Lockett simply supports the claim that the evidence is logically relevant to the issues at the penalty phase. Stating that evidence is relevant tо the critical issue of defendant’s culpability is distinguishable, however, from holding that evidence must be admitted at the penalty phase under the Eighth Amendment. Yet the majority suggests that Green sweeps precisely that broadly. 336 Or at 462-63 n 29.
Finally, the majority purports to find an Eighth Amendment holding in Green on the basis of the particular factual circumstances
In sum, the legal discussion in Green (such as there is) provides no persuasive support for the view that the Eighth Amendment requires certain alibi evidence to be admitted during the penalty phase.
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 suсh 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 Due Process Clause. The Court took pains to limit its opinion. The Court stated at the outset that, “under the facts of this case,” the exclusion of the evidence at the penalty phase violated the Due Process Clause, not the Eighth Amendment. Green, 442 US at 97. The subsequent discussion focused on the reliability of the confession, and the Court particularly noted that the state had relied on the confession during the codefendant’s earlier trial. Again calling attention to the “unique circumstances” of the case, the Court concluded by stating that “the hearsay rule may not be applied mechanistically to defeat the ends of justice.” Id.
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 Eighth Amendment. That holding would have been much more controversial and, for the Court’s purposes in Green, was unnecessary.
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 Eight Amendment does not require its admission.
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 Marshall disparaged
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 capitаl 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.
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 Eighth Amendment of evidence intended to raise doubts about the accuracy of the guilty verdict. Because it suggests that such evidence is not “relevant mitigating evidence” as understood by the Court, Franklin cannot be dismissed so easily.
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 Eighth Amendment requires a jury to consider, or a defendant to have the opportunity to raise, any residual doubts about the defendant’s guilt at the penalty phase. I do not share that view of either the correctness or scope of the majority’s holding.
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 defendant committed the offense, his conduct during the offense, his relative participation in the offense, or any other fact or circumstance regarding the offense itself that would reduce his moral responsibility. In fact, the proposed testimony quite literally does not say anything about defendant’s offense at all.4 See Lockett, 438 US at 604 n 12 (stating that a court may exclude, as irrelevant, “evidence not bearing on the defendant’s character, prior record, or the circumstances of his offense”) (emphasis added); see also Blystone v. Pennsylvania, 494 US 299, 304, 110 S Ct 1078, 108 L Ed 2d 255 (1990) (“[The death penalty in Pennsylvania] is imposed only after a determination that the aggravating circumstances outweigh the mitigating circumstances present in the particular crime committed by the particular defendant, or that there are no such mitigating circumstances. This is sufficient under Lockett and Penry.”) (emphasis added). Rather, the alibi evidence’s only relationship to the offense is temporal, and its relevance is only to establish that, in fact, defendant committed no offense at all.
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 Eighth Amendment required consideration of
In the present case, the alibi evidence is not related to any mitigating fact that informs the jury’s consideration of the severity of the crime. Rather, the evidence is a naked collateral attack on the sufficiency of the evidence supporting defendant’s conviction. Regardless of the merits or effectiveness of that approach, Franklin strongly suggests that the state does not violate the Eighth Amendment if, during the penalty phase, it prohibits arguments or evidence intended to demonstrate that defendant is, in fact, innocent.
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.For some reason, the state did not, in its extensive briefing in this case, separately discuss either the grandfather’s or the mother’s testimony.
The plurality holding of Lockett ripened into a majority holding of the Court in Eddings v. Oklahoma, 455 US 104, 102 S Ct 869, 71 L Ed 2d 1 (1982).
As noted, the majority correctly holds that the scope of mitigating evidence relevant to the fourth question is coextensive with what is required to be considered under the Eighth Amendment.
Indeed, it is conceivable that, after this opinion, scientific evidence challenging the accuracy of eyewitness testimony or fingerprint evidence admitted during the guilt phase could be considered relevant to a “circumstance of the offense.”
The foregoing point is made even more forcefully when one considers that revisiting the issue of guilt or innocence is permitted in specified circumstances, such as (1) the discovery of new evidence (if that is what happens) (