*1 247 January 9; aggravated part Argued conviction for murder affirmed and submitted vacated, part; sentence of death and case remanded to the circuit reversed 17, 1992, proceedings September allowed for further reconsideration order 26,1993 January (1992) P2d 691 See Or
STATE OREGON, OF
Respondent, JR., LANGLEY, ROBERT PAUL Appellant.
(CC S36746) 88-C-21624; SC P2d
248-a *3 248-b Salem, Alessi, Defender, Public argued
Diane L. Deputy filed for Also reply appellant. the cause and the brief brief Avera, Defender, were Public on the briefs Sally Stephen Williams, Defender, Robert Paul J. Public Salem. Deputy Jr.,pro se, brief. supplemental filed Langley, General, Salem, Peterson, Attorney J Assistant Brenda brief were With her on the the cause argued respondent. Linder, L. General, Virginia Frohnmayer, Attorney Dave Metcalf, A. General, Diane S. Lefkow and Janet Solicitor General, Salem. Attorneys Assistant CARSON, C. J. filed an J., dissented and opinion.
Fadeley, *4 CARSON, C. J. case this court on automatic and
This comes before a of conviction and sentence of judgment direct review of Defendant seeks reversal his 163.150(l)(g). death. ORS related to conviction on 16 counts of murder the aggravated Alternatively, Anne he that his requests 1987 death of Gray. be of death vacated. sentence several presents pre-trial assignments
error, error assignments phase seven regarding guilt his three trial, phase. and assignments regarding penalty and, We reversible in the pre-trial find no error phase, no all one error in the We affirm but guilt phase. exception, one of convictions. We vacate the sentence of death and remand case to the circuit court for further proceedings penalty on phase. FACTS
I. Because the found defendant we review jury guilty, to the state. the facts in the favorable light most Williams, 19, 21, Or P2d 1006 murdered,
At the time was defendant a Gray was prison cottage inmate who lived in a on the grounds in while he in Hospital Salem a participated (CTP) residential for men- Correctional Treatment Program in emotionally disturbed inmates. The CTP which tally transition defendant was enrolled is a which program inmate, nearing disturbed end emotionally mentally term, receives extensive prison psychological counseling, living skills, learns and is assisted independent job life in the community. establishing productive after Defendant entered the program April With the approximately years prison. served having during in November 1986 exception of a two-week period “re-evaluate his which was returned to prison defendant in the treatment,” program he remained commitment community until As his into integration 1988. April hospital left the during late progressed Defen- unsupervised passes. grounds lengthy, regularly each pass dant activities for list required planned *5 to a but journal, program detailed did not keep personnel monitor his conduct. otherwise
During fall defendant attended a job search class in Salem. There he met woman named a Sacha Thayer becdme defendant’s and later Thayer. girlfriend in an Gray. Gray introduced defendant to lived alone apart- ment to Defendant often visited adjacent Thayer’s. Thayer Both knew that an Gray. and women defendant was inmate the treatment re-entering community through program. 10,1987. on December Defendant Gray disappeared being the last known to have seen her acknowledges person He arrived at 4:00 alive. after a.m. Gray’s apartment shortly that to iron out details of an that he day, allegedly agreement have had to sell all Gray claims to with so Gray’s possessions that she сould into Defendant claims some- go hiding. to after that her to morning, Gray apartment time 7:00 left go an that Portland with unidentified woman and defendant, in the alone. to apartment According remained confided in him several earlier that she days had Gray 10th to intended to leave town on the and that a Portland trip disappearance. the first toward her step purposeful was to be anyone had not to to else. plan disappear mentioned Gray friends, her and her landlord were employer, Her her family, her about sudden disappearance. worried surprised defen- days Gray’s disappearance, In the preceding an alleged agree- had drawn contract memorializing dant consignment on a possessions for him to sell all Gray’s ment signing to witness the Thayer He had for arranged basis. on the morning before left work Thayer that contract never discussed request, Thayer 10. At defendant’s December disappear. or the When plan either the contract Gray what morning, at Gray’s apartment arrived Thayer affixed to the to be was Gray’s signature already appearеd neither Thayer apartment, While she was Gray’s contract.1 door was note that the bedroom heard but did Gray, saw nor in the bathroom. running and water was ajar but did apartment was Thayer Gray explained seen. want to be trial, signature Gray’s handwriting testimony According expert’s to a forged. Thayer evening
During her took of December defendant out- direction, to meet automobile, at Gray Thayer building apartment lived. where side carrying neighbor Thayer saw defendant another wrapped Gray’s heavy, comforter, from bundle, awkward Thayer Thayer’s Gray’s apartment drove automobile. McCoy, defendant’s aunt. home of Winona defendant to the heavy from the auto- bundle Defendant then removed mobile and McCoy’sbackyard. Twenty minutes carried it to clothing mud, covered with later, defendant, his shoes and carrying only Gray’s Thayer’s automobile, then- returned to muddy days police questioned later, defen- comforter. Several disappearance Gray’s but dant about the circumstances against defendant *6 that time. no further action at took body April Gray’s decomposed was discoverеd on According McCoy’sbackyard. grave 1988, in a shallow body Gray asphyxiation. Her examiner, died of medical the position by very tightly different in the fetal ten was bound including tape wrapped bindings, head to duct around her ligature shoestring-type knotted mouth, a cover her nose and bandages, tapes tightly and neck, numerous around her and legs. Gray’s ropes torso, wrists, ankles, her and tied around by ligature asphyxiation the both the neck and was caused covering tape her nose and mouth. duct by day discovery Gray’s body the followed one body Larry discovery severely beaten and bound acquaintance defendant’s, in a Rockenbrant, another shal- Hospital cottage grave in which behind the State low Following highly publicized trial, defen- lived.2 defendant dant was convicted of Rockenbrant’s murder
and sentenced theory prosecutor’s that defendant to death. Because of the impli- prevent from had Rockenbrant to Rockenbrant killed Gray’s Gray, cating in the murder of evidence of defendant presented disappearance and in defendant’s homicide was reported in murder and was trial for the Rockenbrant newspaper. local cousin, hospital April on his Jone After defendant fled from the state
McCoy, suspicious police about the that defendant had become and contacted hole body backyard Gray’s dug McCoy previous had in the winter. Police discovered dug in November or the location where Jone said that defendant had a hole December 1987.
Of the 19 counts of murder for which aggravated indicted,3 was a Marion found defen- County jury dant of 16. guilty which unani-
Following penalty phase jury mously questions posed answered to all four “yes” by former 163.150(l)(b),4 the trial court entered a judgment by ORS aggravated which convicted of murder defendant was to death. sentenced
II. PRE-TRIAL PHASE OF ERROR ASSIGNMENTS A. Mitigation Investigator the trial
Defendant as error court’s denial assigns of a special investigator his request expenses Defen penalty death cases. expert mitigating expert denied his statu mitigation dant lack of argues We rights rights. and his state federal constitutional tory to an v. Ken first address his statutory right expert. P2d nedy, 295 Or the time of his trial. indigent trial- defendants are entitled statute to certain
Indigent rеlated expenses: Gray. aggravated I All murder Count counts accused defendant murder, torture; alleged alleged II time of intentional Count at the *7 facility; alleged time of was confined in a Count III at the defendant correctional alleged murder, custody”; remaining “otherwise in the counts the was particular
that the murder in the course of felonies. occurred 4 questions: The instructions included these four “(1) death ofAnne Louise Was the ofthe defendant that caused the conduct expectation Gray deliberately death and reasonable that the committed with the Gray of Louise would result? Anne * *
<<* * * probability commit Is a defendant would 2. there the “Question society? continuing would threat to criminal acts of violence that constitute Gray killing defendant in Anne Louise 3. Was the conduct the “Question Gray? any, response provocation, if Anne Louise in to the unreasonable ‘ Considering charac- [sic] to which the defendant’s 4. the extend ‘Question may defen- background reduce the of the offense ter and and circumstances crime, culpability should a sentence blameworthiness for the dant’s moral or imposed?” death be 253 is appointed has been for whom counsel person “The investigation, prepara- for expenses to reasonable entitled the The or the counsel person case. presentation tion and motion, need not be disclosed which person may upon for the case, to of the secure attorney prior the district conclusion to as expenses of such payment and authorization approval in the necessary investigation, finds and proper the court are case, but not including of the preparation presentation * * * necessary obtaining costs the limited to associated defense, for the witness expert [and] attendance of witnesses * * 135.055(3). fees *.” ORS court appeal The on is whether the trial appropriate inquiiy its in what was necessary abused discretion determining this case. Rogers, in the circumstances proper P2d 1308 Or as “an
Defendant describes mitigation investigator who potentially mitigating individual specializes compiling case,” accused in noting information about the a capital new area of to aid relatively expertise, developed “[i]t the defendants favorable evidence to capital presenting trial.” than one- phase factfinder of the More penalty for was for investiga- half the amount requested expenses to and from her office. The affidavit tor’s travel out-of-state of the investigators assigned did not one local explain why and present mitigating assist defendant could not search out nor why peculiar expertise specialized or investigator necessary preparation presentation approve The trial did of defendant’s case. fees, and expert witness investigators
other for requests limited light of this was reasonable of the its denial request did not trial court justification provided. that defendant its discretion. abuse based objections
Defendant did not raise any trial, nor is infirmity during constitutional before alleged ORAP law on the face record. apparent an error of Brown, P2d 259 5.45(2); see v. 347, 355-56, Or (1990) for ORAP satisfying (discussing requirements 5.45(2)). objections We will consider the constitutional Walton, see State 5.45(2); ORAP first time on appeal. (1991) сonsider P2d 81 223, 240-41, (declining court). in trial not raised argument constitutional *8 B. Demurrer
Defendant’s demurrer raised 25 concerning issues of the indictment.5 All but of have constitutionality two those been this court in death rejected by previous penalty appeals. issues, We address the two unresolved each which chal- 163.095(2)(b) ORS as lenges unconstitutionally vague. ORS 163.095 defines murder as aggravated “murder under, accompanied any following committed or of the by, listed Among aggravating circumstances.” circumstances is this one: state,
“The was confined in county defendant or munici- in pal facility custody correctional or was otherwise penal 163.095(2)(b). when the murder occurred.” ORS asserts that both in “confined” “otherwise are in the custody” vague following respects: vague in “Defendant submits that this statute is constitutional fair protections violation of the state notice (Article (Article 11), I, 16), I, proportionality section section (Article I, 20), privileges and immunities section and the (Article 21). I, protection against post ex laws section facto vagueness, process, The statute also violates the due equal protection рrivileges guarantees and immunities Fourteenth Amendment of the United States Constitution.”
Defendant’s
chief
is
because the
argument
defined
custody”
terms “confined” and “otherwise
are not
statute,
give
fail
notice
forbidden
by
they
adequate
standard under
Consti
vagueness
Oregon
conduct.
Graves,
v.
299 Or
tution was set out
this court
(1985):
P2d 244
arguments challeng
supplemental pro se brief also raises other
Defendant’s
constitutionality
penalty sentencing
arguments
ing
Those
of the death
scheme.
imprisonment
possibility
parole.
without the
See ORS
relate to the sentence of life
163.150(2)
jury finding
penalty,
(following negative
on death
trial court shall
jurors
parole
possibility
to life without
unless 10 or more
find
sentence
mitigating
imprisonment).
sufficient
to warrant
life
We need not
circumstances
option
arguments
parole”
because the “life without
was added
address defendant’s
1989;
statutory
any
penalty phase proceeding,
new
defendant will
to the
scheme
statutory
in force in 1987 or
when the crime
be sentenced under the
scheme
(1992) (“It
Isom,
391, 395,
“The terms of a criminal statute
be
subject to it what conduct
to inform those who are
explicit
will render them liable to its
part
penalties.
their
21, 27, 457
In addition to its
Hodges, 254 Or
P2d
conduct,
giving
[a]
notice of the forbidden
*9
function of
fair
judge or
vague
permit
criminal statute must not be so
as to
a
in
defen
punishing
exercise uncontrolled discretion
jury to
dants,
this offends
ex
principle against
post
because
facto
I,
in
Consti
laws embodied Article
section
equal privileges
and immunities clause
tution.
Id.
vague
give
implicated
is also
when
laws
[footnote omitted]
judges
jurors
decide what is
unbridled discretion to
prohibited
case,
in
given
unequal
in a
for this results
Robertson,
v.
293 Or
application of criminal laws. See State
402, 408,
A
“A statute need not define an offense case, specific can determine the conduct that every person reach, degree will fall within that statute’s but reasonable I, Article sections 20 and 21.” certainty required by is ambiguous argues Defendant the statute is community in the whether, being pass it is unclear on because ’’We conclude murder, the time he was “confined. Gray’s at us to unambiguous permit the term was sufficiently law, was not “confined” hold, as a matter of that defendant rather than murder, because he was a pass the time of the refers to actual physi The term “confined” in an institution. unconstitutionally vague. “Confined” is not cal restraint. is custody” also that “otherwise argues “other “confined” and The terms unconstitutionally vague. Context in the statute. juxtaposed are custody” wise generally See statutory meaning. in determining important P2d 394 312 Or Frankel, Davey ex rel State (1991) statu ambiguous context of both text and (analyzing here, ambiguity. there is no the context Given tory language). custody penal in the who is said, a defendant Simply therein confined physically who is not facility but correctional with the is consistent reading This custody.” is “otherwise words of common construction that statutory rule of accepted natural, ordinary meaning. plain, their given be usage Co., 295, 299, 613 Ins. 289 Or Farm Mutual See Perez v. rule). (1980) with the It is also consistent (stating P2d 32 of escape.6 in the context of “custody” definition are reasona- terms challenged that both We conclude fact to a particular their certain, though application even bly v. Nefstad, See State be difficult. occasionally may situation (1990) (even used commonly 523, 540, P2d 1326 There to apply). be difficult may defined words and readily of defendant’s court’s denial in the trial was no error demurrer.7
III. GUILT-PHASE ERROR OF ASSIGNMENTS *10 Counsel Appointed Substitute A. Appointment of it erred when that the trial court Defendant asserts Defen of new counsel. for appointment denied his motion trial, day just on the first was presented dant’s motion court- At that two point, was to begin. selection jury before nearly one defendant represented had lawyers appointed year. no could longer court that he
Defendant told the himself. The chose to represent his lawyers work with commentary juxtaposed legislative actual and constructive The 1971 restraint: “ * * * custody person departure from ‘Escape’is the unlawful defined as of‘custody’refers expressly to both actual facility. The a correctional definition * * * argued that some situations restraint. It has been since constructive leave, temporary e.g. work release restraint, programs, involve no actual liberty did not constitute departure the limits of his unauthorized from actor’s Commentary rejects Legislative to 1971 escape. This draft that view.” an added). Code, (emphasis 162.135 Criminal ORS restraint,” legislature “actual while analogous called to what the “Confined” is legislature “construc- custody” analogous called to what the “otherwise tive restraint.” challenge is further discussed the term “confined” Defendant’s infra III.E.; at the time was not “confined” the state conceded that defendant Part murder. to advise a third independent lawyer trial court appointed se defense and to pro of a defendant abоut the ramifications lawyers. about his assess defendant’s complaints defense, his own present pre- three gave options: counsel, of existing his defense with the assistance sent own The court counsel. by existing or continue to be represented event, delayed. the trial would not be warned in any advice of the considering independent lawyer, After his appoin- to continue to be represented by defendant chose motion for but, nonetheless, a written presented ted counsel The trial court denied substitution of counsel. appointed motion. of what he called complained
Defendant’s motion of counsel” an during “intentional ineffective assistance he was habeas at which corpus challenge unrelated pre-trial He the same by lawyers. explained: represented hearing during corpus his state habeas “Defendant and was lied to and put on all of his evidence allowed attorneys keep in order to this manipulated his defense attorneys His did not discuss proceedings. out of the testimony before his defendants strategy go [sic] nor over the taking stаnd.” was an “attitude of ani- also asserted that there dissat- because of his lawyers between him and his
mosity” with them. isfaction substitute “may of competent jurisdiction
A court
stage
any
proceed-
counsel for
one appointed
another
such substitution.”
require
interests of justice
when the
ings
135.050(5).
has “no
to have
However,
right
a defendant
ORS
of a legitimate
the absence
lawyer
court-appointed
another
for him.”
already appointed
the one
concerning
complaint
Davidson,
617, 620,
been for better than 10 or case, once, ready present present it now are to familiarize themselves with to require again. appointed, then it would parts If new counsel were to be one of the many continuance, perhaps is not [sic] [sic] months which this Court weeks considering prepared waste that would be involved. to do the economic “Also, utilizing court-appointed counsel would wonder if a defendant one legal discharge permitted without conflictof interest were counsel newly stop? appointed being expressed, it The counsel sense then where would subject suggest everything I that I as far as to the same motion. And see wouldbe fairness to the So there will be no new counsel Defendant, deny people that motion. well as fairness to the as appointed.” allegation of assistance of The trial court also addressed defendant’s “ineffective” counsel, stating that there was morning “nothing presented which would indicate that that’s been to me this circumstances!.]” [counsel] under the actions of are not reasonable I, provides: section Constitution Article * * * right prosecutions, have the to be “In all criminal the accused shall counsel.” heard himself and provides: States Amendment to the Constitution of the United Sixth * * * enjoy right have prosecutions, shall “In all criminal the accused for his defence.” the Assistance Counsel
259 The trial court did not abuse its discretion denying motion for substitution of counsel. defendant’s B. Venue Change of cases,
As is common in homicide
there was substan
defendant,
victims,
tial
about
his
and his
pre-trial publicity
that,
murder
Defendant asserts
of the
earlier
trial.
because
the trial court should have
his motion for
publicity,
granted
change of venue. Defendant asserts
that
the trial court’s
his motion
denial of
denied his
fair trial under
right
I,
11,
Article
section
of the
Constitution and the Sixth
and Fourteenth Amendments
to the
Constitution
United States.10
it is our
to address issues
Although
practice
of state
and constitutional
law before
statutory
issues
State v.
Kennedy, supra,
law,
federal constitutional
defen
dant
offered no different
under the statute than
analysis
has
constitutions,
assume,
under the
or federal
so we
with
state
See
out
that
the same.
deciding,
analysis is
Trans. v.
Rogers, supra,
Dept. of
363,
313 Or at
(1992)
Lundberg,
(making
573 n
Defendant’s motion for of venue May- about local defendant’s newspaper coverage during trial for the Rockenbrant murder. With his June 1989 10 articles venue, motion for defendant submitted change from that trial. Seven of those newspaper, chronicling a local Defendant also articles featured of defendant. photograph I, prosecutions, provides “[i]n all Article section criminal * * right by impartial jury public accused shall have the to a trial an Amendment, by process applicable clause of the The Sixth to the states the due Amendment, provides prosecutions, the accused “[i]n all criminal Fourteenth * * trial, by impartial jury enjoy right speedy public to a an shall filed, withdrew, case, Long defendant then before defendant’s trial this changing pre-trial publicity. Defendant’s motion for an order venue because 23,1989, mid-way through jury- change of venue was filed October second motion for by publication prompted of a The second motion was the October selection. Northwest inflammаtory seven-page purportedly about defendant article Magazine Sunday Oregonian. The second motion incorporated section of The reference, adding only allegations by about allegations from the first motion Magazine Magazine Northwest on the article Northwest article. The effect of the jurors issue; voir jurors questioning that none of the dire revealed is not at extensive publicity is the At issue before this court the article or knew of its existence. had read complained which in his first motion. overcrowd prison an eleventh local article about submitted defendant, who was then featured a photograph ing the 11 articles submitted defen row. The latest of death venue was change printed of his motion to dant support in this began months before selection jury more than three history criminal The reported case. articles as as facts of about his future well dangerousness, opinions trial, of defendant’s earlier both homicides and other details conviction, and sentencing. motion based on trial court denied defendant’s *13 out in ORS 131.355: for venue set changing
the standard defendant, shall оrder court, “The motion of upon if court is county to another changed of trial to be place where the action is county that there exists in the satisfied that against the defendant great prejudice so a commenced impartial fair and trial.” cannot obtain a the defendant abuse of discretion. of such motions for We review denial (1968). Little, 297, 312, P2d 810 v. 431 State 249 Or v. State implied asserts that this Little, 312, “adverse alone is publicity Or at that supra, 249 its discre a trial court abused finding an for ground adequate We such reject of trial.” tion in to move refusing place Little. To the adverse of contrary, reading broad itself, not, of and does murder case is common in a publicity a fair and get for a defendant make it necessarily impossible at 364-65 Rogers, supra, v. trial. See State impartial murder earlier facts of defendant’s about publicity (pretrial venue). change trial not sufficient Little, cited an opinion v. this court supra, In v. Max States, Sheppard of the United Court the Supreme (1966), 2d 600 as a 1507, 16 L Ed well, 384 US 333, 86 S Ct as to deprive was so coverage prejudicial news case in which claim, nor do we Defendant does not fair trial. defendant of a to the comparable in this case was find, publicity that Maxwell, v. nor supra, in Sheppard inflammatory publicity change of his motion for that denial does he present trial. him of a fair and impartial actually deprived of venue States has of the United Moreover, Court Supreme as the inflamma extremely cases of and similar stated, Sheppard (Estes 1628, 14 L Texas, 532, S Ct v. US 85 381 publicity tory
261
Louisiana,
723,
Ct
US
83 S
(1965), Rideau v.
373
2dEd
Dowd, 366 US
717,
(1963), and Irvin v.
1417, 10 L Ed 2d
(1961))
be made to stand
“cannot
L Ed
1639, 6
2d
81 S Ct
about
to information
juror exposure
for the proposition
news accounts
or to
convictions
prior
state
deprives
alone
charged
presumptively
he is
with which
crime
Florida, 421 US
Murphy
process.”
of due
the defendant
We conclude about familiar with publicity were jurors some empaneled a fair and denied defendant, thereby was not 1034-35, Yount, Patton v. US trial. See impartial (1984) (if time passage L Ed 2d 847 104 S Ct *14 and venire- community the effect of publicity has softened no negative publicity once familiar with jurors men so that about a hold longer opinions details and no recall longer trial). a fair defendant, is not denied that pretrial publicity court determined The trial base would empaneled jurors and that was not prejudicial determination is enti- That verdicts on the evidence.12 their at 364. Rogers, supra, weight. tled to great years ago, As this court noted 80 any impression acquired intelligent citizen who has never “A broad-minded juror; but direсtly indirectly an ideal the to be tried would be or about issue either press through and days, the of communication in these when the means impracticable among people, to attain to the it would be is so extensive otherwise * * * justice. experi- [An jurors high standard for the administration this qualified the judge] juror better than before him is far trial with the enced hand, court, only paper determine the record at the members of this disregard previous opinion juror will the question whether or not the ultimate The court’s of defendant’s motion for a change denial venue was not an abuse of discretion. Psychotherapist-Patient Privilege C. Evidence: murder, At the time of the defendant was participat- in the state’s corrections treatment ing program mentally and In disturbed inmates. the emotionally penitentiary pro- defendant was under gram, the care and of men- supervision tal health who his mental professionals treated and emotional him with the life problems helped transition from prison treatment, to freedom. As of his he was part required trial, numerous written At the state prepare assignments. offered several of those written as evidence. The assignments con- assignments written issue included a “treatment (exhibit (exhibit 1140), 1141), an tract” “self-assessment” (exhibit 1179), from defendant’s and a entry “daily journal” (exhibit 1297). “life The life 13-page history” history offered the All four documents were during penalty phase. admitted over defendant’s timely objection. the assigns as error admission those
documents, which, asserts, he were confidential communica- have from protected tions should been disclosure by That set psychotherapist-patient privilege. privilege is out 504(2): OEC
“A and to patient privilege has a to refuse to disclose from confidential com- prevent any person disclosing other or purposes diagnosis munications made for the treatment among mental condition patient’s or emotional who are patient’s persons patient, psychotherapist diagnosis in the or treatment under the direc- participating including tion of the members of psychotherapist, patient’s family.” this
The state contended at trial and contends before did not to the privilege apply that the psychotherapist-patient “patient,” because defendant was not a assignments, written of defendant’s treatment team for and because the members formed, meaning fairly impartially try within the he has case subject.” *15 statute on that Humphrey, 540, 548, 128 P 824 he the were not assignments psychothera- whom prepared that, if has the docu- argued alternatively state pists. had the ments once were defendant waived privileged, the were into before documents admitted evidence. privilege whether a to Determining privilege applies proffered is a a trial court question by evidence fact decided prehminary 104(1).13 for of law trial under OEC We review errors the determination that no this case. privilege applied court’s The trial court admitted the exhibits over defendant’s privi- no without whether it concluded that lege objection stating or that defendant had waived the privilege. existed privilege the below, the set out we conclude that each of For reasons was but waived privileged documents at issue that defendant The trial did not them. the court err privilege. admitting Under the a psychotherapist-patient privilege, is who consults or is examined or inter “patient” person “a 504(l)(b). a OEC A by “psycho viewed psychotherapist.” * * * licensed, is person is “a who therapist” registered, any certified or otherwise authorized under the laws of state of a mental or engage diagnosis to the or treatment 504(l)(c). a Defendant was emotional condition.” OEC he entered the for treatment of because “patient” program mental or and consulted regularly emotional condition in the as a of his psychotherapists part participation its Whether, state, by as asserted the program. the desire to leave by prison
motivated to enter program irrelevant; more than a desire to be treated is the salient by and received entering sought fact is the he by program, persons treatment a mental or emotional condition. The defendant’s written assigned assignments who reviewed he were members of patient program while was a or treatment who were themselves “psychotherapists” team agents “psychotherapists” (psychologists were Miller, team. See Or who led psychiatrists) (1985) (communications by 203, 219, P2d 225 patient 104(1) provides: OEC qualification person “Preliminary concerning be a questions of a witness, admissibility be privilege of evidence shall the existence of * * making by its the court determined In determination *. respect privileges.” except those with bound the rules associated with and persons under direction of a acting psy- 504). chotherapist held privileged under OEC Under OEC *16 504(2), the challenged documents, 1140,1141,1179, exhibits 1297, were confidential communications between and a patient We conclude as a psychotherapist. matter law, the psychotherapist-patient to each privilege applied challenged document. We turn next to a determination whether defendant waived the privilege.
An evidentiary can be privilege waived the holder’s by voluntary disclosure to third parties. OEC 511 establishes that a holder of an evidentiary privilege “waives the privilege * * * if the person voluntarily discloses or consents dis closure of any significant of the matter or part communica tion.” The state argues that waiver occurred when exhibits 1140 and 1141 were admitted as evidence without objection the Rockenbrant during alternative, trial. In the the state argues, when, waiver occurred during cross-examination, defendant described the nature of assignments that he was required as of his complete part treatment. 1981,
Before
any testimony offered
holder of
waived
privilege
any communication that the holder had with
any other
“on
the same subject.” Former ORS
person
44.040(2) repealed by
1981,
Or Laws
ch 892, § 98. There was
unresolved
in this court’s
inconsistency
of the
interpretation
“on the
language. See Stark
subject”
same
Properties
Street
Teufel,
v.
(1977)
649,
212,
177 Or
658 n
The question second dis in the Rockenbrant trial admitted whether the exhibits revealed the communication significant part” closed “a 1297. the documents, Although 1179 and other exhibits the defendant’s overruling reason for did not state its court trial evidence, we infer that the admitting and objection against privilege that the could have found reasonably 1140 and of exhibits had been waived admission by disclosure trial. defendant’s earlier 1141 during part of the Following argument, provided this court with that the state oral colloquy among court and counsel transcript that recorded Rockenbrant trial into 1141 were admitted 1140 and identified as exhibits the time documents now permitted a recess to transcript defense counsel reveals that the court evidence. they defendant did not admitted and that before were the documents review Disclosure, then, voluntary, and the was object to their admission. thereafter privilege was waived. transcript may argues not consider the Rockenbrant this court Defendant that (limiting appeal. may See OEC which not be noticed it contаins facts because facts). by OEC adjudicative legislative are not restricted judicial We notice of adjudicative nor here are neither of which we take notice the facts because objection during trial is Rather, the earlier no legislative fact that there was facts. evidentiary question. only purely legal preliminary a fact relevant to given an transcript and was the state offered was notified that 201(e) opportunity be heard as (party to to respond. entitled opportunity See OEC to notice). response and are judicial defendant’s taking considered propriety We persuaded it. recorded in entries such as the one Making journal of defendant’s treatment part exhibit 1179 was a required was to allow defendant purpose journal One program.15 to reflect on defendant’s therapists thought processes and his events, infer, reflect- daily in reaction to we those especially, history,” on his to commit crimes. The “life ing propensity criminal and his history exhibit recorded defendant’s subject he committed crimes. The matter why reflections on all was the mental emotional four documents problems A very to commit crimes. underlying tendency subject of that disclosed exhibits significant part trial. and 1141 when were admitted the Rockenbrant they instance, exhibit 1140 included the statement: following For my criminality part my power
“I see as and control and calculating/compulsive I use think- manipulation patterns. ing behavior favors immediate towards criminal/hurtful is evi- self-gratification. My impulses failure resist these history. my criminality criminal I by my denced extensive use * * * autonomy say Tm expression [sic] as a rebellious I I somebody and 111 do what ever want to do whenever [sic] Im from separate [sic] to do It makes me feel like it[.]’ want me an of freedom and excite- everyone gives experience recognize anyone to not but gives ability ment. It also me the me and major Its thrust that exhilarates myself. power [sic] being having independent gives powerful me sense control.” contract,”
Exhibit the “treatment went on to describe defendant’s anti- thought process preceded the detailed entries were less Although journal social conduct. the life more detailed than the history quoted detailed and matter was the same and a exhibit, subject significant their when of that matter was disclosed exhibits subject part trial. Defendant’s and 1141 were admitted earlier during *18 the communications confidential was keep to privilege waived. 15 journal by trial treatment The nature of entries was described at
supervisor: journals something expected people are that’s of all that are “The emotionally pro- mentally [the MED disturbed treatment treatment gram], they designed have the individual do some self reflection on a are been, day significant daily what events have basis in terms of how their has day any particu- significant thinking they happened, had about the or have meaning during day. have of to them the course of the The lar incidents that been journals by person regularly reviewed a staff at MED.” are argument that defen- not reach the state’s We need on cross-examination by describing his privilege dant waived he in treat- assignments prepared written the nature of before the trial began.16 had been waived ment. privilege D. Torture motion as the denial of his
Defеndant error assigns I, of murder acquittal charge of on Count the judgment for a 163.095(l)(e) of intentional torture. ORS in the course the of the charge: defines elements “ murder defined in ORS ‘[Aggravated murder’ means as under, any accompanied by, which is committed 163.115 following circumstances: of
"***** “(e) in the course or as The homicide occurred maiming or torture the victim.” result intentional murder stat- aggravated provision The torture Cornell/Pinnell, supra, v. Or State ute was construed (1987): at 31-32 the legislature’s purpose conclude that enact- “[0]ne can 163.095(l)(e) for
ing
punishment
ORS
elevate the
intended to
perpetrator
separately
murder when the
also
** *
upon
unwilling
inflict
an
victim.
physical pain
intense
physical pain, even
every
“Not
infliction of intense
intensely
be
through
by
intentional act known
the actor to
an
intentional,
as
must be
‘torture.’ The act
painful, qualifies
course,
connotes that
inflic-
but the word ‘torture’ itself
for
intentional act.
pain
tion of
is one reason
the defendant’s
statute,
prove
perpetra-
the state must
that the
To utilize the
objective
had
from
death
apart
responsibility
tor
this
(footnote omitted).
Id.
of the victim.”
presented
asserts that
the prosecution
We
charge.
to establish the torture
insufficient
case,
in a criminal
sufficiency
of evidence
questions
review
commentary prepared by
legislative
Although we are not
bound
Code,
background.
State ex
Oregon
recognize
we
it as useful
drafters of
Evidence
McClure,
(1991);
v.
5, 823
Davey
Frankel,
286, 293
Or
n
P2d 394
rel
legislative
336, 344,
point
this case is the unofficial
following conviction, by examining in
the light
most
favorable to the state and
whether
determining
rational
fact,
trier of
accepting reasonable
inferences
reasonable credibility choices, could have found the essential
elements of the crime beyond a reasonable doubt. State v.
Walters,
Gray by asphyxiation. Although the two medical witnesses testified that death by asphyxiation takes three to five minutes and is we painful, agree with defendant evidence of intentional is asphyxiation not, itself, i.e., an intent torture, evidence of to inflict intense physical pain. Absent other circumstances, murder by asphyxiation not different than substantively murder by stabbing or shoot In ing each bludgeoning. instance, the victim well may suffer several minutes pain terror before succumbing. The focus of a torture inquiry is not on the defendant’s intent death, cause the victim’s but on the defendant’s separate intent to cause intense physical pain. Cornell/Pinnell, supra.
Although evidence that defendant purposely blocked was Gray’s airways insufficient to reach a verdict on guilty count, the torture we conclude that was jury presented with a sufficient of other quantity evidence of defendant’s intent to inflict intense physical that we pain must affirm.
Gray’s body was very elaborately bound a tight fetal position ten separate ropes, bandages, and lengths all tape, carefully tied and knotted so that she could move at all. Her mouth was covered by adhesive then tape, duct was tape wrapped three times around her head. Defendant’s own medical expert that, testified if the bindings had been while was applied Gray alive, have they would been A painful. rational factfinder could infer that reasonably bindings were while applied Gray was alive and that the number and tightness of the was far bindings beyond what would have been necessary to further an intent her A prevent escape. rational factfinder further could have inferred that defendant applied with an bindings intent to cause axid maintain muscle intensely painful cramping.
Another reasonable inference that a rational fact- finder could have made is that defendant purposely kept Gray period bound for a of time the intent that tightly lengthy escalating pain. she suffer unrelieved and steadily a.m.; before he Gray’s Thayer arrived invited apartment there, before While she Thayer sometime 7:30. was neither heard did saw nor but note that defendant claimed that Gray, bathroom, was where water running Gray enough to muffle A rational could sounds. factfinder have inferred arrived, alive, Gray when was bound and Thayer gagged, *20 and in intense Defendant pain. heavy bundle, took a which was out of the apparently Gray’s body, apartment sometime 5:30 p.m. after Jurors could have inferred that defendant to alive keep Gray suffering intended and physical intense before he killed her. pain
There was for sufficient evidence a rational fact- to finder find reasonable doubt that defendant beyond intended to inflict intense physical before pain Gray her. asphyxiating Accordingly, we affirm defendant’s convic- tion in aggravated murder the of course torture.
E. Aggravating Factor in Correctional of Confinement Facility and the argues, agrees, state that he should have been he acquitted charges Gray that murdered while he was an confined in Oregon correctional The facility. murder occurred while defendant a pass was on from away the Oregon State he in Hospital. Although was “otherwise custody” as in another the alleged indictment, count of he was not “confined.” The court erred by denying defendant’s motion the acquittal on count alleging confinement. Defendant’s of aggravated conviction murder for murder committed while confined in an correctionаl is facility reversed. remaining
Defendant’s murder aggravated convic- tions are affirmed.
IV. PENALTY-PHASE ASSIGNMENTS OF ERROR The trial in case from place this took October December a time when capital sentencing procedure in in In Or Wagner, was metamorphosis. (1988) P2d (Wagner I), this court considered death and penalty jury the instructions constitutionality found that the three instructions mandated statute by allowed sufficient consideration evidence. mitigating 163.150(2) ORS time three instructions required by I approved Wagner and were: ‘‘(a) the conduct of the defendant that caused Whether deliberately the the committed death of deceased was expectation that death of the deceased or with the reasonable result; would another
“(b) probability Whether there acts that would constitute would commit criminal of violence issue, continuing society. determining In this threat any mitigating jury instruct to consider shall evidence, limited including but not circumstances offered to, severity of the defen- age, the defendant’s extent criminal conduct and the extent the mental prior dant’s was under which the defendant pressure emotional сommitted; and the time acting at the offense “(c) evidence, If raised whether the conduct by the deceased was unreasonable killing the defendant Or response provocation, any, if the deceased.” 305 at 121. *21 the Court the United States.
Wagner Supreme to of appealed the and remanded July 1989, judgment In court vacated of light “for to this court further consideration the case Penry v. Lynaugh, L Ed 2d 302, 2934, 109 S 492 US Ct 106 Oregon, (1989).” v. Wagner 914, 109 S Ct 492 US L 2d 583 106 Ed Court Supreme the United States
In June Penry Penry Lynaugh, supra. landmark case decided the the be imposed, death could penalty held before the mit “any consideration required jury federal constitution background to defendant’s relevant a igating of the crime” required or the circumstances character it could “informing jury the fourth instruction separate, US to the evidence.” mitigating consider and effect give death 2951, 106 Oregon’s L Ed 2d at 284. 328, 109 Ct at S death the statutory were based on Texas instructions penalty Penry. at issue in instructions penalty In to which decided in the response Penry, legislative session, waning days Oregon’s legisla- “fourth statutory question”: ture passed constitutionally considering “If the extent required, background character and which the defendant’s offense may circumstances of the reduce defendant’s crime, moral blameworthiness for the whether culpability or be imposed.” a sentence of death Former ORS 163.150 (l)(b)(D) (1989). Or provision 24,1989. That became effective Laws July 790, § ch 135b.
At the close of defendant’s trial penalty phase case, in this this had not yet court reconsidered State v. trial Wagner, supra, so the court had no guidance for instruction other than the mitigation Penry statute and itself. Although excepted and submitted alternate instructions,17 the trial court gave following jury instruction:
“Considering the extend [sic] to which defendant’s background character and and circumstances of the offense may reduce the defendant’s moral culpability blame- crime, worthiness for the should a sentence death be imposed?” trial also instructed the jury as follows: answering
“In questions these four you any are consider mitigating circumstances received in evidence including by —but not age limited the defendant’s and the extent and severity of the prior defendant’s criminal conduct and the extent of the mental and pressure emotional under which acting the defendant was at the time the offense was committed.” requested following question” given that the “fourth be to the
jury: ‘‘Considering mitigating evidence, including all of the but not limited to the character, background, offense, and the circumstances should Langley, Paul prison?” Robert sentenced than Jr. be to death rather to life in *22 excepted requested to the court’s instruction and the alternative the proposed by Wagner, instruction Justice Gillette’s v. dissent State 305 Or (1988), viz., evidence, considering mitigating P2d “After all the does jury unanimously death, prisoner put still conclude that the he should to rather spared?” than to weeks after defendant was sentenced
Several death, constitutionality this court revisited the issue Wagner, death instructions penalty II). II (1990) (Wagner Wagner 5, 786 The court held in P2d 93 163.150(l)(b)(D) oí that ORS was gram the language former an unclear a translation into intellig matically required be ible instruction in order for the to sentencing process jury at 18. The court went on to constitutionally effective. 309 Or consistent with suggest mitigation an instruction intelligible statutory might standards that be phrased constitutional in the following language: You defendant receive a death sentence? should
“Should if question you any aspect ‘no’ find that there is answer this background, any of defendant’s character or circum- offense, would you justify stances of the believe 19. less than death.” 309 Or at sentence The also court stated: practica- can be mitigation
“We do not believe that evidence crime we bly ‘causally to items related’ to the limited of a character and aspects conclude all defendant’s sentence,’ i.e., jury’s are ‘relevant to exercise background question ‘should response of a moral to the defen- reasoned ” Id. dant receive death sentence?’ statutory only repeat Not did trial below held to which this court later incomprehensible, be language, clearly allowing jury it also an instruction give failed not related to causally mitigating consider reasons, were constitu- these the instructions crime. For sen- and we must vacate defendant’s inadequate, tionally tence of death.18
IV. CONCLUSION affirmed, is as except of conviction judgment of death is vacated. II, reversеd. The sentence Count which is been consid- not herein have of error discussed Assignments The case remanded unpersuasive. ered are to be but found consistent further proceedings to the circuit court for this opinion. sentence, we Having need address vacated defendant’s death penalty-phase assignments of error.
other
FADELEY, J., dissenting.
I dissent
for the reason stated in the first
three
paragraphs
dissenting opinion
Williams,
State v.
(1992).
19, 44-45,
Or
Only
legislative branch
enact
may
laws.
penal
Isom,
(1992) (“the
391, 395,