State v. Isom

9,1991, Argued July conviction for murder and submitted 9, 1992 July sentence of death affirmed OREGON, OF STATE Respondent, ISOM, JAMES MICHAEL Appellant.

(CC S36612) C86-05-32246; SC

837 P2d 491 392-a Salem, Defender, Williams, Public Deputy J. Stephen him With appellant. and filed the briefs for the cause argued Defender, Salem. Avera, Public on the brief was L. Sally 392-b Attorney General, Peterson, Salem,

Brenda J Assistant respondent. argued the and filed the brief for With her cause Frohnmayer, Attorney General, Dave Vir- on the brief were ginia General, Adams, Linder, and Jas. Assistant L. Solicitor Attorney General, Salem.

GILLETTE, J. opinion. Fadeley, an and filed J., dissented GILLETTE, J.

This is an automatic and direct review of a judgment of conviction of murder and of death. aggravated sentence 163.150(1)(f) (1987) (now Former ORS ORS 163.150(l)(g)). It is the second time the case has been before us. On the first we reversed conviction com appeal, due to error Isom, mitted at trial. See State v. 306 Or 761 P2d 524 (1988). After retrial, defendant once seeks reversal again his conviction for he asks murder. aggravated Alternatively, vacate affirm this court to his sentence of death. We both defendant’s conviction of murder and his sen aggravated tence of death. found view defendant We therefore guilty.

the evidence in the most favorable to the state. State v. light (1991). Rose, 274, 276, 810 P2d 839 May 1986, defendant, On prisoner in a Wash- state ington prison, was transferred to a work release center Seattle, Washington. Later defendant was day, center, granted a to leave the release that he pass provided return He did not return as by p.m. required. later,

Several days defendant rented a room at the Continental Motel in Portland name James Austin. He met Barbara in a bar, Maher Portland and later they returned to his motel The next defendant morning, room. of the day, body, checked out motel. Later Maher’s death, in the stabbed to was discovered bathtub of defen- dant’s room. with

Defendant was arrested and charged aggra- 163.095(2)®.1 trial vated murder. ORS After a bifurcated he was found murder and jury, guilty before to death. sentenced provides, part: ORS 163.095 section, ‘aggravated murder’ means “As used ORS 163.105 this murder] [intentional murder as defined in ORS 163.115 which is committed

under, by, following accompanied or circumstances: <<* * * * * “(2)(f) escaped The murder after the had from a was committed

state, county municipal penal facility or correctional and before the defendant facility.” custody had been returned to the 394 numerous his challenges

Defendant’s to conviction sentence of death fall into three and and we categories, address them by category.

CHALLENGES RELATING TO 163.095(2)(f)

ORS 1. in the law. Change

Defendant contends that the with aggravatingfactor 163.095(2X0, which he was ORS is uncon- charged, facially (criminal I, Article stitutional under sections 16 penalties offense), the 20 (equal must be to and proportional privileges laws) post ex immunities), against and 21 of (prohibition facto Constitution, Due Oregon the as well as under the Process of Amendment to the Constitution of Clause the Fourteenth is, event, the unconstitutional as United States and We the constitu- to him this case. first address applied 163.095(2)(f) of as defendant. applied ORS tionality that, statutory a matter of Defendant as the he entitled to benefit of a amend- construction, Code that made failure to Oregon ment to the Criminal misdemeanor, a a work release center a return on from pass of felony escape.2 rather than the departure, unauthorized that, return to the if his failure to contends not an escape release center did constitute Washington of not have been convicted law, he could Oregon current 163.095(2)(f). ORS violating right he a to the benefit that has

Defendant claims he regarding punishment in law the of a change Even assuming his conviction.3 receive based on may 162.135(4) murder, “escape” 1986, defined as time Maher’s ORS In the at follows: “ including departure, failure to return to ‘Escape’ unlawful means the specific purpose period, custody granted limited temporary a or leave for after * * facility custody person *.” or a correctional victim, escape was a supplied.) At time defendant murdered the (Emphasis 162.135(4) (2). 162.155(l)(c) 1989, legislature amended ORS felony. In temporary custody for a after leave to return to to “failure to remove reference time, legislature inserted specific purpose period.” At the same limited 162.135(7) departure.” ORS language in the of “unauthorized comparable definition (1989). departure 790, § is a misdemeanor. 53. Unauthorized Or Laws ch See ORS 162.175. authority permits him to benefit as to the brief is unclear Defendant’s broader argument in the context his change makes from a in law. He applied the facts this as argument “is unconstitutional that his conviction not now be with chargeable

defendant would 163.095(2)(f), his is not well argument murder under ORS to declare what power punishment may taken. “The convicted of crime is not a but judicial, assessed those against only by controlled legislative, power, provisions Smith, State v. 515, 524, 273 P 323 Constitution.” (1929). when legislative, Because the power punishment crime, Oregon for a changes punishment the legislature that the intended. legislature courts must sentence apply 161.035(4), found in ORS clause savings reason is provides: Criminal Code of which Oregon’s “When all or of a criminal statute is amended or part part the criminal statute or thereof so amended or repealed, purpose authorizing remains in force for the the repealed accusation, prosecution, punishment conviction and of a or thereof the person part who violated the statute before amending repealing effective date of the or Act.” 161.035(4) It is clear from ORS that the legislature criminal intends that courts sentence defendants Oregon under the scheme in force when a crimi statutoiy particular v. 697, Pirkey, nal act was committed. See also State 203 Or grounds by overruled on different 702, (1955), 281 P2d 698 Winters, Klamath Falls v. 757, 781, Or 619 P2d City of 289 (“the (1980) the statutory provision specifying punish an integral part for the acts constitutes doing specific ment Moore, v. P2d State 39, 45, 192 Or itself’); of the crime (1951) in criminal codes “are declarative clauses (savings the repeal any of the state that of a continuing policy incurred or any liability release or extinguish statute shall not Twilleager, v. 18 Or accrued”); App any right affect (1974) the 161.035 required that ORS (holding 524 P2d 567 defendant whose not to abate the punishment court amendment). a later by was diminished sentence the under to be sentenced To defendant permit a criminal act code for to the criminal amendment post-1989 in the law would have change occurred before the This would punishment. reducing prescribed effect of methodology argument in the will defendant’s nonetheless address case.” We — law, statutory Oregon then under the by first under long-established this court See State v. Constitution, finally Constitution. the United States Oregon (1983) methodology). (setting 260, 262, forth Kennedy, 666 P2d 1316 295 Or 161.035(4) that a directive of ORS violate the legislative that was face the same sentence defendant possible criminal the criminal acts for the defendant committed in effect when punished.4 is to be which the 163.095(2)(f) does not violate hold that ORS We also which defen on provision state or federal constitutional any an ex post increasing law This is not a case of dant relies. facto Gallant, criminal defendant. See State of a punishment 155, 764 P2d 920(1988) ex speaking, (“Generally at the time they acts that were legal post laws punish facto acts, or occurred, deprive for those change punishment acts.”). Here, the trial for those defendant of a defense time in effect at the scheme statutory court applied hold, therefore, murder. We defendant committed 163.095(2)(f) defendant, constitutional, applied as is and that federal constitutions the state and under both defendant under to sentence refusing did not err trial court scheme. statutory the post-1989 163.095(2)(f). in ORS “state”

2. The definition 163.095(2)(f) that ORS Defendant next contends from a he was an case, escapee in his because does not apply escape did not center and therefore work release Washington i.e., Oregon facility, an facility, a “state” correctional of ORS interpretation as required 163.095(2)(f).5 argument of defendant’s The thrust facility’ said, any ‘from correctional have statute could “[t]he state, county facility a correctional or ‘from ” municipality.’ 163.095(2)(f) spe- ORS that responds The state from “a state” escape on includes defendants cifically 4 legislature for the legislative and the issue is one directive is clear Because this ‘ ’ ‘lenity’ principle decide, of this court to consider the no occasion for to there is See, Welch, e.g., State v. legislative not clear. intent is followed when is sometimes (1973) lenity”). 388, 393, (discussing “principle of 910 505 P2d an appellant’s he “considered acknowledges brief that was in his escape.” reply felony charge In subject of his Washington a escapee law and to under * * * states, se, pro conceded “I have not brief, defendant which defendant submitted escape by I was on public office that the defender’s agreed claim made with the or facility, of that fact.” We do take should take note and this court from a correctional original brief is note; legal proposition in the defendant’s we also hold status, felony 72.65.070, “escape” a was on defendant RCW correct. Under Washington law. facility; is no reference to “this” state there

correctional signify legislative argues, a intent would, the state which only Oregon apply facilities. “That lan- to the subsection including guage, states, other face, its includes on Washington.” * * * facility” in that a “state correctional We hold 163.095(2)(f) facility any in refers to a state correctional

ORS Oregon. just In to the in State of addition to one state, not reasonably language, statutory clear,6 of evidence which is may scope legislature’s of “state” intent as to the 163.095(2)(f) is ORS the context of the statute.7 derived from — aggravating inten that elevates factor a circumstance an thereby a murder and makes murder to tional penalty. aggrava eligible death That to receive the escape ting defendant. The crucial status of the factor is 163.095(2)00 the defendant is whether or not element of ORS escapee. purpose an For the of the murder while committed 163.095(2)(f), pertinent in which state the is not it ORS escaped institution; there is no a correctional defendant suggestion from (or legislature thought to had reason that the think) escapee in one state would from an institution that an escapee dangerous an than would more or less be either escapees covered The statute institution another state. an like defendant. Vagueness.

3. 163.095(2)(f) that ORS Defendant next — vagueness facially i.e., that the unconstitutional because unequal application a standardless and statute invites Oregon I, 20 and law, ofArticle sections violation Fourteenth Clause of the Constitution, and the Due Process are by Oregon as to how we to Criminal Code itself instructed We are 161.025(2) provisions. states: its construe strictly apply not penal construed shall statute is to be “The rule that Code], any provisions. [The Code] shall be Oregon of its Criminal [the terms, promote justice import and to according its the fair

construed (1) section.” purposes of this stated subsection effect (f) legislative history. added to ORS helpful was Subsection There is no 163.095(2) legislative closing days of the 1981 by in the a measure that was enacted committee to part made a conference of additions session. The subsection law. There is no bill, topic the criminal originally dealt with another SB concerning the subsection. or debate record of discussion 398 States In v.

Amendment United Constitution.8 State 132, (1990), Farrar, Or 786 P2d 161 this court summar- 309 law to a chal- ized and federal Oregon applicable vagueness case, murder statute. In that to the lenge Oregon aggravated invoked, others, the same constitu- among the defendant here, that are invoked by tional provisions 163.095(2)(d) (2)(e) unconstitutionally and as ORS challenge 163.095(2)(d) (2)(e) and This court held that ORS vague.9 an uncon- “[t]hey present not because do not vague, were federal law of ad hoc or ex post risk under state or stitutional 309 Or at 183. application.” facto 163.095(2)(f) not is likewise

We hold that ORS 21, I, 20 and under Article sections unconstitutionally vague 163.095(2)(f) ORS due clause.10 process and the federal who are to it of subject to inform those “sufficiently explicit its render liable to their will them part what conduct on Farrar, Or at 182 (quoting 309 supra, State v. penalties.” (1985)). 244 189, 195, 700 P2d Graves, 299 Or State v. 163.095(2)(f) or ajudge does not “permit Moreover, ORS 8 Constitution, I, provides: Oregon section Article privileges, any passed granting class of citizens citizen or law be “No shall terms, belong immunities, which, equally to all upon not the same shall or citizens.” I, provides: section Article * * * * * passed ex-post law shall ever “No facto United States Amendment to the of the Fourteenth Due Process Clause The provides: Constitution * * * any person deprive which shall enforce law “No State shall make or * * life, process *.” liberty, property, due of law without 163.095(2)(d) (2)(e) 9 aggravating 163.095(2)®, are and ORS with ORS As Aggravating are Oregon’s aggravated factors murder statute. contained factors ORS accompanied or committed. murder is which a under those circumstances 163.095(2)(d) provides: 163.115(l)(b) rule], felony the defen- [the murder “Notwithstanding ORS under the circum- intentionally the homicide personally committed and dant 163.115(l)(b).” forth in ORS stances set 163.095(2)(e) provides: ORS of a the commission to conceal in an effort murder was committed “The identity perpetrator a crime.” crime, or to conceal (1990), 132, 184-85, court held Farrar, P2d 161 this Or In statute, aggravated Oregon’s murder aggravating factors two Eighth 163.095(2)(d) unconstitutionally vague (2)(e), were not and Eighth not raise an Defendant did Constitution. States Amendment to the United that issue. do not address vagueness here. We therefore Amendment claim punishing” uncontrolled discretion in a defen-

to exercise — person intentionally Id. statute clear who dant. murders, is she escapes he or from a state after correctional facility returned, he before or she is commits 163.095(2)(f) ambiguous. in are The murder. No terms ORS hold) (as requires today scope we definition, term but one having scope persons as an includes defendant’s status facility. pre- escapee correctional The statute from state no risk under state or federal law sents “unconstitutional supra, application.” post Farrar, v. hoc or State ad ex facto 309 Or at 183. legislature’s argues that “the failure to

Defendant specifically type escape type more of murder define vagueness that would fall within the statute creates the interpretation problem. of the statute would A reasonable flight it to facilitate a limit to murders committed defendant’s 163.095(2)(f) custody.” from Defendant claims that ORS distinguish avoid the heinous crime of murder to “does not escape or rearrest murder unrelated to the initial from rearrest.” argument critique is, essence, in

Defendant’s legislature enacting policy in ORS choice that made 163.095(2)(f). legislature could However, the fact that the 163.095(2)(f) have ORS to murders committed limited nothing flight custody” says “facilitate a defendant’s “identify pro- [it] that statute fails to what about whether hibits.” supra, is Farrar, at 183. The statute v. Or State impermissibly vague. not Disproportionality.

4. combi- in the alternative that the

Defendant escapee, while an murder nation of 163.095(2)00, sentencing provisions 163.105 of ORS and the unconstitutionally disproportionate I, sec- under Article are Oregon statute, a Under the 16, of the Constitution.11 tion solely penalty may on that based the death defendant defendant’s status receive escapee com- the defendant as an when require that not murder; the statute does mits an intentional part: 16, provides, I, Oregon Constitution section Article proportioned penalties offense.” “[A]ll shall be that a murder be related to the Defendant claims escape.12 is more escape inherently who is “person attempting Therefore, already than a who has person escaped. dangerous for a murder committed after an escape a greater penalty an is during escape dispropor- than for a murder committed to the offense.” tionate relies on this court’s holdings (1981), and Cannon v. Or 630 P2d 796

Shumway, 291 (1955). cases, Those Gladden, 203 Or 281 P2d Each of however, defendant’s contention here. support do not which, due to definitional a situation those cases concerned included carried a greater pen- a lesser peculiarities, offense That is not this situation. offense. than alty principal is in the view, process escaping Defendant’s person already is escaped, who has dangerous than a defendant more for defendant problem opinion. simply i.e., it opinion, had a different apparently the legislature escapees, committed intentionally murders believed that threat considerable posea the escape, whether during after The populace. mind of the general and safety peace to the all such to subject persons to has chosen legislature makes opinion Defendant’s penalty. maximum potential legislature. to the which we attribute sense, but so does that that to conclude for the legislature a rational basis There was dangerous. are escapees classes of both statutory that addition, argues In defendant classes of certain because is disproportionate, scheme statute. murder aggravated from are omitted escapees murder statute aggravated that the contends Defendant first from who, escaping while prisoner to a single not apply would and citizen ordinary an encounters facility, a correctional defen reasoning, argues kills him The bare hands. with his not constitute would conduct prisoner’s dant, is therefore, would and, 162.165, ORS degree, in the first escape ORS murder aggravated to that prisoner not subject murder includes 163.095(2)(d) (the rule that murder felony 163.095(2X0 apply “would illustration, ORS states that way defendant By suspended driving who charge while county jail on a person in a incarcerated to a fact that the quarrel. The a lover’s wife after pass and killed his return from did not relationship the crime to rational escape have no would on status aggravated murder.” committed in the course of and in the furtherance of first degree escape).13 Defendant believes that such a difference in potential sentences between that of a hypothetical prisoner and a person defendant’s position is so disproportionate to the offense as to shock the moral sense of all reasonable persons as to what is right See Cannon proper. v. Glad- den, 203 Or at 632 supra, (setting standard for holding offense). that a sentence is to the disproportionate that the same shock to the moral sense is shown by 163.095(2)(f) fact that ORS omits persons escaped from a federal prison. reject First,

We defendant’s arguments. all escape- related murders are included in the murder aggravated stat- (2)(b) ute, (2)(f). under either subsection or subsection The reason is that a defendant, whether one confined in a correc- tional or one who facility times, is at all escapes, for the purposes Criminal Code of either confined or there is no escaped; in-between See category. Ore- generally Criminal gon Code of Commentary to ORS 162.135 (definition of that “an “escape”) (stating inmate is consid- ered confined within a ‘correctional facility’ time of original commitment until lawfully discharged, regardless of institution”). his actual presence within the Contrary defendant’s assertion, there is no in the contin- type escape uum from confinement completed escape not cov- ered aggravated murder statute.

Second, the fact that the legislature chose to omit from federal from the escapees prisons murder not, statute does render the by itself, scheme dis- statutory proportionate. was not legislature required invite potential Supremacy Clause14 problems by imposing state 162.165(1) provides: person escape degree

“A commits of the crime in the first if: “(a) by person actually present, person Aided another the uses or threatens physical escaping custody facility; to use in force from or a correctional or “(b) person deadly dangerous weapon The uses or threatens to use a or escaping custody facility.” from or a correctional 14 Clause, VI, 2, Supremacy The Article clause of the Constitution on the States, provides: United Constitution, “This and the Laws of the United States which shall be made * * Land; supreme Judges

in Pursuance thereof* shall be the Law the of and the 402

consequence federally-created escapee. on a status of legislative create, case, distinction in does not defendant’s the possibility disproportionate of a sentence so the offense as persons all to shock the moral sense of reasonable as to what right proper. is

CHALLENGES RELATING TO

THE GUILT PHASE assignments We next address defendant’s of error as during to the trial court’s admission of certain evidence his trial.

1. Admission Exhibit 2. argues improperly the trial

Defendant court copy judgment from admitted Exhibit a certified Washington “robbery, in for defendant’s 1980 conviction weapon.” dangerous During while armed with a Washington employee trial, work release center an escaped facility. had from that That testified that defendant objection, employee identified Exhibit 2. Over defendant’s Exhibit 2. court admitted trial he had that evidence that

Defendant concedes facility yet escaped not been and had from a correctional custody relevant, was because the murder returned to before aggravating escapee factor status as an was his argues, charge however, murder. Washington why proof had been incarcerated as to he that was not therefore, that Exhibit and, OEC 401 relevant under by If trial court.15 such have been excluded 2 should 2 Exhibit none- relevant, defendant was evidence OEC because have been excluded should theless substantially out- any probative in the exhibit value prejudice danger by him.16 weighed of unfair any Thing or Laws thereby, in the Constitution every shall be bound notwithstanding.” Contrary any State to the having any provides means “evidence “relevant evidence” OEC consequence determina tendency to the fact that existence of to make the probable it probable would without than less of the action more tion evidence.” provides: OEC probative relevant, if value is may be excluded its “Although evidence prejudice, danger of unfair confusion

substantially outweighed

403 that, We hold even if the trial court erred in admit- — a ting judgment conviction we question do not decide — 103(1) the error was harmless. OEC provides: “Evidential error is not presumed prejudicial. Error may not be predicated upon ruling a which admits or excludes evidence right unless a substantial party of the * * affected *.” A substantial right defendant’s is hot affected if there is little likelihood that any error in 2 admitting Exhibit affected the verdict. State Hansen, v. 169, 180, 304 Or 743 P2d 157 (1987). See State v. generally Williams, 19, 55-56, 313 Or 828 (1992) P2d (Unis, 1006 J., dissenting) (summarizing Oregon law). “harmless error”

Defendant had testified at his trial, and a prior of that transcript prior testimony was admitted in the present case. When asked on cross-examination in that trial prior about convictions, prior that responded he had been “arrested” theft, for forgery, and armed In robbery.17 addition, defendant did not to a object portion prosecu tor’s opening statement that referred to prison defendant’s term in for armed Washington robbery. Any prejudice to defendant was further diminished the trial by court’s instruc — tion to the not to jurors use defendant’s prior convictions as opposed the fact that he was confined in a correctional — institution pursuant to one of those convictions for any other than in purpose evaluating defendant’s credibility as witness.18 As this court has emphasized before, are “jurors assumed to have instructions, followed their absent an over that would whelming probability they be unable to do so.” Smith, v. see State v. 1, 26, 310 Or P2d (1990); 791 836 (1991) (same). Walton, 223, 250, P2d hold, 809 81 We issues, misleading jury, delay or considerations of undue or needless presentation of cumulative evidence.” “arrested,” Despite permit defendant’s use of the word the context would jury to infer that defendant meant “convicted.” The trial court instructed the that: you crime, previously “[i]f find that defendant has been convicted of a

you may only bearing, any, believability consider this conviction for its if on the testimony. Specifically, you may of the defendant’s not use this evidence for the purpose drawing the inference that because the defendant was convicted of a crime, previous may guilty charged the defendant he of the crime in case.” this therefore, is little likelihood error there See State Exhibit would have affected the verdict. admitting Hansen, supra, 304 Or at 180. 2. the social services worker. testimony Exclusion trial

Defendant next court erred Jenkins, excluding testimony of Tom under OEC 702 at the St. Francis Outreach downtown Ministry worker offer of testified during proof Portland.19 Jenkins in downtown Portland for middle-aged it was common to self-defense. carry and older men for Jenkins weapons for older that downtown Portland was hazardous the testified tes Defendant contends that Jenkins’ men who were there. understanding have aided the that jury would timony with in conformance the customs of the acting defendant was he a knife on the that he was possessed day when locality in his brief that he was concerned arrested. Defendant asserts ‘ that, jury might on this ‘the conclude point, without evidence defendant carried a knife indicated that the mere fact that and commit assaults.” aggressive that he was to be likely sustained the state’s motion to trial court that, if the trial We hold even testimony. exclude Jenkins’ — it and we do not intimate that was ruling court’s were error — was harmless. OEC of Jenkins’ testimony the exclusion Hansen, supra. 103(1); trial court’s ruling fails to how the

Defendant explain state did not of his. The substantial right prejudiced any that he testimony bought separate rebut defendant’s Moreover, on cross-examination knife for self-protection. murdered, was defen- where Maher of the motel manager in a motel was located testimony that dant out brought City for the Attorney A City neighborhood.” Deputy “rough motel, that there that, in the area around Portland testified provides: OEC knowledge trier of scientific, specialized will assist the other “If technical or issue, qualified to a fact a witness the evidence or determine to understand fact testify skill, may training or education expert by knowledge, experience, as an opinion of an or otherwise.” thereto in the form rule, testimony court to the trial “expert” defendant stated Although 702 the OEC “custom,” testimony proof of a “habit” or as sought he to introduce Jenkins’ that however, approach, is not OEC Defendant’s errant 406. evidence admissible pertinent to the resolution this issue. ’’ ‘‘ and also drug activity, deal of great prostitution [a] was In “incidents violence” that area. view he had seen that evidence, is little likelihood the trial court’s of that there that erroneous, if even affected testimony, exclusion Jenkins’ Hansen, the verdict. State v. supra. sister.

3. Cross examination of defendant’s trial, cross-examined state During in a as to she had failed to testify “prior proceeding sister why case” “was bit as every important [defendant] in this that objected subsequent two proceeding.”20 as this Defendant objection The trial court overruled defendant’s as questions. Later, but it the other. when the one, sustained as to sister, cross-examination defen concluded prosecutor mistrial, moved to the trial court arguing dant for be drawn from the prosecutor’s clear inference to there had “prior comments about proceeding” trial been a trial” in the case. The court denied that “prior motion, that defendant had failed to make his motion stating that, trial, manner and there timely during for a mistrial in a about lawyers, had been discussion “prior hearings, prior investigations, prior everything.” prior erred in the trial court contends for a and in his motion objection denying his overruling prosecutor’s questioning mistrial. Defendant defendant, to because highly prejudicial was improper had been previously defendant questions implied states, charge. jury,” on the “The defendant tried same led to about trial.” prior “could have been speculate could means that such speculations Apparently, had that defendant been to conclude jurors have led the convicted. review this appellate precluded manner. State v. in a timely failed to

issue, object because he (failure Walton, timely pre at to object 311 Or 248 supra, Brown, 347, 371, 800 State v. review); 310 Or appellate cludes (1990) (same). 259 P2d for the same conviction “prior in this was defendant’s proceeding case” That — reversed that court of Maher. This

charge present the murder as in the case Isom, 587, v. appeal. 306 Or grounds present to the on not relevant conviction (1988). P2d 524 at trial

The pertinent colloquy was as follows: Question [by prosecutor]: “You’re familiar with the fact that back in 1986, December of there was prior another case; proceeding in this right?” is that

Answer: “Yes.” Question: “You know that. And proceeding was everybit as important your to brother proceeding as this having today, we’re here isn’t that correct?” Answer: “I’m sure it was.”

Question: “Right. Very important, okay. You never appeared as a witness that proceeding, you?” did

[Defense “Objection, counsel]: a it’s comment on prior strategy.” counsel’s

The Court: “It’s a question. Yes or no.” ”— Question [by prosecutor]: “You never The Court: “Overruled.”

Defendant objected only to the prosecutor’s “comment on prior counsel’s strategy.” That is a different theory than the one defendant later on his argued motion for mistrial and viz., that he now argues, the prosecutor improperly referred as prior bit as proceeding “every important brother as your this An on proceeding.” objection one ground is not sufficient to objection. Wallender some other preserve (1970) Michas, 475 P2d 72 (setting forth rule). general Moreover, the reference to prior proceeding occurred several questions objection. before the The objection 103(l)(a) See OEC not timely. must (objection timely).21

4. “lesser included” instruction on give inten- Refusal tional murder. The state defendant with one charged count of aggra murder; vated no lesser included offenses were in the charged trial, indictment. At the conclusion of the defendant asked the trial court to instruct on four lesser included (1) intentional, murder, offenses: but not aggravated, 103(1)(a) provides: OEC evidence, timely ruling admitting objection “In case the is one ormotion to record, stating objection, appears specific ground specific the if the strike ground apparent was not from the context.” (3) (2) 163.118; ORS sec- 163.115; first degree manslaughter, (4) 163.125; criminally and ORS manslaughter, ond degree denied 163.145. The trial court homicide, ORS negligent murder but instructed as to intentional request as three offenses. to other jury the trial court erred argues that failed to instruct 136.465, discussed when it post, He also that charge. on the intentional murder jury charge instruct on that jury the trial court’s refusal to Amend- violated his under the Fourteenth rights Eighth jury, States Constitution. The defendant ments to the United to determine asserts, “should have had the opportunity without factor had not been proven having the aggravating murder.” Failure of the trial court defendant for acquit “was harmful and a requires opportunity give for murder.” aggravated of defendant’s conviction reversal We first address this under Oregon statutory issue law. ORS 136.465 provides: may cases, guilty

“In all found the defendant necessarily crime the of which is included commission accusatory instru- charged with which the defendant is such crime.” attempt ment or of an to commit added.) The crime of intentional murder is “neces- (Emphasis murder. See ORS included” in the crime sarily murder). (1985) of aggravated definition (statutory 163.095 ORS 136.465 is permissive. state responds included offense instruction not mandate a lesser It does a case, in the lesser of the evidence particular because when, “necessarily included” statutorily offense, although lesser included factually is not a offense, nonetheless charged 191, 195, Naylor, State v. state relies on offense. The reaffirmed in recently court (1981), which this P2d 1308 (1987). In 333, 348, P2d 552 White, 303 Or 136.465, a defendant that, under ORS held this court Naylor, if offense included instruction for lesser a jury has right as that, on the evidence based could conclude juror a rational of the greater was not guilty fact, to a disputed 195 n 2. Or at offense. 291 of the lesser guilty but was offense On the case, evidence in the present no juror rational could have concluded that defendant was not guilty aggra- vated murder but guilty intentional murder. Defen- dant therefore did not have a statutory right to a lesser included instruction on intentional murder. Under statu- the scheme, tory the factor that only separates aggravated mur- der from intentional murder is the of an presence aggravating factor. Although asserted that he did not fall law, within the scope statute as a matter of he admitted in his that he prior testimony was an as we have escapee, now term, defined that as a matter of Moreover, his trial fact. counsel the acknowledged same in thing closing argument. did What defendant dispute factually was whether he was when acting intentionally he caused Maher’s death. That issue did not distinguish the offense of intentional murder the offense of murder. aggravated It did distinguish between manslaughter murder. trial court therefore did not in err denying defendant’s request instruct as to the jury of intentional charge murder.

In the alternative, defendant the trial court’s refusal to instruct on jury the lesser included offense of intentional murder violated rights Beck v. Ala under the federal constitution as in interpreted (1980).22 bama, 625, 100 2382, 447 US S Ct 65 L Ed 2d 392 In Alabama, Beck v. supra, Court held that a Supreme state statute which prohibited factually-appropriate lesser included offense instructions in cases violated the Due capital Amendment, Process Clause of the Fourteenth and the Eighth shows, Amendment. As our previous discussion trial court’s in this case did ruling not violate defendant’s Alabama, under Beck v. supra, rights because there was no evidentiary basis for instructing jury as to intentional murder.

CHALLENGES RELATING TO

THE PENALTY PHASE We next address defendant’s assignments error relating to the penalty of his phase trial. parallel Defendant made no claim under the state constitution. ” question.

1. Instructions as to the “fourth assigns as error the trial court’s instruc jury mitigating tion to the to consider all the evidence and to penalty. whether receive the death answer That defendant should concerns what has to be called the instruction come case. See State v. Pin question” penalty “fourth in a death (1991) (setting n P2d forth nell, 98, 117-18 30, 806 development Oregon question”). We of the “fourth adequate jury hold that the instructions this case were the state and constitutions. under both federal in the Before returned the verdict of death present July legislature 1989, 21, case on amended Ore- gon’s aggravated question murder statute to include a fourth jury.23 response That to be asked of the amendment was Penry Lynaugh, L 2d 492 US 109 S Ct 106 Ed (1989), Supreme where the of 256 Court the United States held that a Texas murder statute unconstitu- permit jury give meaningful tional, because it failed a to to range possible mitigating consideration to the entire of evi- provide relative to the and to a “reasoned dence accused response” question to the of whether the moral ultimate accused should live or die.24 case, in after

The trial court this much discussion parties, jury with the decided to instruct the on fourth newly question based on the enacted amendment to ORS Penry Lynaugh, supra. not, 163.150 and v. The trial court did jury however, instruct the Instead, it instructed the in the exact words of the statute.

jury as follows: you given questions “You will be must answer either * ** yes or no. answering you any “In these are to consider questions, in circumstances received evidence. You mitigating may 23 163.150(l)(b)(D) (1989), provided: question, The fourth constitutionally considering required, extent which the defen- “If the may background, of the offense character and and the circumstances dant’s crime, culpability for the moral or blameworthiness reduce the defendant’s imposed.” whether a sentence of death be aggra Oregon’s patterned the Texas aggravated murder statute was after 302, 109 2934, 106 Penry Lynaugh, L v. 492 US S Ct murder statute at issue in vated den_US_ (1989). 5, 13, Wagner, cert P2d State v. 2d 256 Ed II). (1990) (Wagner the any aspect factor mitigating consider as a of record, the any circumstances the character offered, which you the defendant has deem offense worthy consideration.” added.) on The trial court next instructed (Emphasis jury provided other three the statute. court questions — — the fourth gave question then the instruction challenges defendant on this appeal: you law question “And the final asked is if are give any mitigating unable full effect to evidence under the then the extent to which questions, considering first three background character and and the character the defendant’s may and circumstances of the offense reduce the defendant’s crime, for the should a culpability moral or blameworthiness imposed.” sentence of death be the jury:

The trial court also instructed ‘ moral employ response ‘Youare to reasoned to evidence mitigation reachingyour verdict. Youcan consider these questions in order.” added.)

(Emphasis question in the fourth three for rea constitutionally inadequate case was present this that “the fourth case First, he asserts question sons. because it simply repeats standard fails intelligibility This court in the amended statute.” confusing language den_US cert 5, 18, 786 P2d Wagner, Or 163.150(1)(b)(D) _(1990) II), (Wagner that ORS observed — (1989) question fourth which statutory — and was therefore clarity” lacked “grammatical refers however, noted, As constitutionally inadequate. statutory the 1989 repeat this did not in case

instruction II, Wagner in suggested, this court question fourth The trial court created clarity. supra, grammatical lacked that, jury when read with a question instead fourth similar to this whole, remarkably as a was instructions II, Wagner supra, forth in instruction set suggested court’s five after over months an issued Or at opinion stated that trial We there trial in this case. defendant’s suggested be identical our need not court’s instructions instruction need Id. at We 18. held that the question. fourth “intelligible.” be law otherwise state the and accurately only jury case, in this We hold that instructions as whole are “intelligible” constitutionally adequate and as to the fourth by question required Supreme Penry in Court Wagner Lynaugh, supra, this court in II. next that the trial court’s

Defendant claims instruc jury question in this case to consider the fourth tion to the only any give mitigating if “unable to full effect to evidence questions” Wag under the first three ner was inconsistent with jury’s mitigating II, because it made the consideration of contingent jurors’ the first evidence on deliberations on questions. Again, argument well three is not taken. specifically jury

The trial court instructed the that it any questions could consider the four “in order.” That any meaning of clear; instruction is it cures doubt about the you any phrase give “if the mitigating are unable to full effect to questions.” evidence under the first three Consid- ering juror whole, the instructions as a a reasonable would question jury to mean that the have understood the fourth jury any mitigating was consider evidence to which the was to give unable to full effect under instructions otherwise order should question whether of death to answer the a sentence imposed. question case, there- The fourth this impermissibly mit- make consideration of fore, did not jury’s having already contingent igating on the evidence questions. deliberated on the first three question Finally, fourth jury’s improper, limited the consideration because it was causally mitigating related to the to evidence evidence correctly effect, an if contends that such offense. holding Wagner II, present, violate this court’s would disagree supra, However, with defen- at 19-20. we question in this effect of the fourth assessment of the dant’s case. argument the fourth fails, because

Defendant’s jury instructed question read in isolation. cannot be you questions], answering [the “[i]n are to consider four that, any mitigating in evidence.” received circumstances added.) (Emphasis instructed court also The trial ‘ any aspect mitigating factor as a ‘consider that it could added.) jury The (Emphasis record.” character defendant’s whole, jury instructed the clearly as a instructions, when read or not that evidence, whether mitigating all to consider related to the crime. causally evidence mitigating were in this case instructions that the jury We hold the challenges with to respect constitutionally adequate them. makes to defendant here ” “society.

2. The definition of question statutory penalty-phase second The decide: to requires jury would that the defendant probability is a

“Whether there that would constitute of violence criminal acts commit society." continuing threat to added.) 163.150(l)(b)(B). Defendant (Emphasis instruction: following requested

“ the universe society no matter whether ‘Society’means great or small.” society of that be court, instruction; to that court refused give

The trial he wanted whatever defendant to however, argue permitted his closing him. During it affected mean, provided society as to to the jury two references made argument, “society.” meaning in deny- erred the trial court that instruc- for language instruction. requested his ing 115, 752 P2d Or Wagner, from State v. tion was taken (1989). court there This vacated, 492 US 914 (1988), aggra- “society” Oregon’s to the term a challenge rejected statute. vated murder the issue ‘society’ operates. in what question

“Amici unless meaningless question is argue that They seem to thereof, or a society large part it at whether is jury knows question setting in which that is to be prison, such as what the statute the answer is We conclude posed. the universe no matter whether ‘society,’ namely says, or small.” great society 153. Id. at would have instruction requested

Defendant’s have That would society. means “society” jurors told to the given jury; instructions actually to the nothing added it. See give did not err therefore, refusing the trial court (1990) 564, 600-01, 613, 789 P2d 1352 Montez, State v. (no requested give in trial court’s refusal error to the nothing instruction added when that instruction court). the trial given by instructions assignments all of defendant’s We have considered They are opinion. discussed in this those not error, including not well taken.

CONCLUSION murder and for aggravated conviction Defendant’s death are affirmed. sentence of

FADELEY, J., dissenting. three in the first for the reason stated

I dissent Williams, 313 in State v. dissenting opinion paragraphs (1992). 44-45, 828 P2d 1006 Or at a in this case occurred the homicide Specifically, federal constitu did not meet statute Oregon time when States of the United Court muster. Supreme tional case to death penalty remanded a and vacated the sentence 914, 109 S Ct 492 US v. Wagner Oregon, this court (1989). court, Thereafter, by majority this 106 L Ed 2d it to save in an effort the statute vote, 100 words to added Moen, Or See infirmity. the constitutional (1990) detail J., dissenting, (Fadeley P2d 111 45, 102-04, 786 statute). had been The statute addition to 100-word ing the had court this do not believe in 1984.1 adopted and initiated after-the- substantial, significant, make a authority their vote the people, the 1984 statute addition to fact has affirmed Thus, majority it, not include. did adopting statute. a penalty amendment judicial based on sentence I laws. may penal enact branch Only legislative dissent.

Case Details

Case Name: State v. Isom

Court Name: Oregon Supreme Court

Date Published: Jul 9, 1992

Citation: 837 P.2d 491

Docket Number: CC C86-05-32246; SC S36612

Court Abbreviation: Or.