State v. LangleyState v. Langley
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This is аn automatic and direct review of a judgment that imposed a sentence of death for aggravated murder.
Former
This case stems from defendant’s conviction on 16 counts of aggravated murder for the death of Gray. The facts regarding the crime are set out in Langley I, 314 Or at 249-52. At the time when the proceeding in Langley I was underway, defendant already had been convicted and sentenced to death for the murder of Rockenbrant. This court subsequently vacated defendant’s death sentence in the Rocken-brant proceeding. See State v. Langley, 314 Or 511, 840 P2d 691 (1992) (reversing upon ground that evidence of Gray murder erroneously admitted in Rockenbrant proceeding). 2 Defendant murdered both Gray and Rockenbrant while he was living on the grounds of the Oregon State Hospital and participating in a residential Criminal Treatment Program (CTP) for mentally and emotionally disturbed inmates.
As noted, after defendant had been convicted and sentenced to death for the Gray murder, this court reversed the sentence of death and remanded for a new penalty-phase proceeding (remand proceeding). This review stems from that remand proceeding, at which a jury again sentenced defendant to death. On direct review, defendant raises 22 assignments of error, only three of which we address in this opinion.
TRUE-LIFE SENTENCING OPTION
Defendant’s primary assignment of error relates to the trial court’s refusal to permit the jury to consider the option of sentencing him to life in prison without the possibility of parole (true life). Defendant argues that the trial court was required to instruct the jury on thе true-life sentencing option under
former
We begin by setting out the relevant procedural history. Gray was reported missing in December 1987, and her body was discovered in April 1988. In November 1989, a jury convicted defendant of 16 counts of aggravated murder for Gray’s death. At the time of defendant’s trial, aggravated murder proceedings were governed by
The trial court in
Langley I
applied
In 1992, this court considered the case on direct review and affirmed all but one of defendant’s convictions. However, the court concluded that the fourth question, asked of the jury pursuant to
Both defendant and the state petitioned for reconsideration, which this court allowed to consider the ex post facto issue. Langley I, 314 Or 247, on recons 318 Or at 30 {Langley I (on reconsideration)). On reconsideration, the court discussed the then-recent case of State v. Wille, 317 Or 487, 505, 858 P2d 128 (1993), in which this court had held that “[Retroactive imposition of [the true-life sentencing option] violated Article I, section 21, of the Oregon Constitution, and Article I, section 10, of the Constitution of the United States.” The court concluded that the constitutional prohibition against ex post facto laws discussed in Wille, rather than the general rule set out in Isom, precluded retroactive application of the true-life sentencing option in defendant’s case. See State v. McDonnell, 329 Or 375, 384 n 5, 987 P2d 486 (1999) (summarizing Langley I (on reconsideration) in that manner). The court adhered tо its earlier decision in Langley I and vacated defendant’s sentence of death, based upon the inadequacy of the fourth question. As with Langley I, the court remanded the case to the trial court for further proceedings. Langley I (on reconsideration), 318 Or at 32.
At his remand proceeding, which commenced in 1994, defendant changed his strategy regarding the true-life sentencing option and sought to waive his
ex post facto
objection to retroactive application of
On direct review of the remand proceeding, defendant now argues that the trial court erred by refusing to allow him to waive his
ex post facto
objections to the true-life sentencing option set out
informer
We begin with the state’s various preliminary contentions. The state first argues that the trial court lacked authority to instruct on the true-life sentencing option because that option was beyond the scope of this court’s remand instructions in Langley I (on reconsideration). The state bases that argument upon its undеrstanding that, in Langley I (on reconsideration), this court “unambiguously held that this defendant may not be sentenced to true life on remand.” That characterization is inaccurate. Langley I (on reconsideration) merely recognized that defendant’s constitutional protection against ex post facto laws, if asserted, would preclude the trial court from applying the true-life option retroactively. Nothing in the remand instructions precluded the trial court from accepting defendant’s waiver of those constitutional rights on remand; indeed, waiver was not at issue in the Langley I proceedings.
Second, the state argues that the doctrine of “the law of the case” precludes application of the rule set out in McDonnell. The law of the case applies here, the state argues, because, “[w]hen this case previously was before this court, the court fully considered the issue and held (1) that the issue of potential sentences on remand properly was before it, and (2) that the true-life sentencing option was not аmong them.”
Under the doctrine of the law of the case,
“when a ruling or decision has been once made in a particular case by an appellate court, while it may be overruled in other cases, it is binding and conclusive both upon the inferior court in any further steps or proceedings in the same litigation and upon the appellate court itself in any subsequent appeal or other proceeding for review.”
State v. Pratt,
316 Or 561, 569, 853 P2d 827 (1993) (internal quotation marks omitted). Thus, the law of the case “precludes relitigation or reconsideration of a point of law decided at an earlier stage of the same
In Langley I, the “point of law” at issue was whether retroactive application of the true-life sentencing option to defendant during his initial penalty-phase proceeding, to which defendant timely had objected, would violate constitutional ex post facto prohibitions. On reconsideration, this court concluded that it would. That point of law is not in dispute here. Rather, the question is whether defendant, оn remand, was entitled to waive his constitutional protections against ex post facto laws. Because that question was not presented or decided in the earlier proceeding, the doctrine of the law of the case does not prevent us from considering it now.
Finally, the state asserts that, during the Langley I proceeding, defendant did more than merely assert his ex post facto rights; rather, he made a separate, more general argument that the true-life sentencing option should not be provided to any jury in his case. Specifically, the state argues:
“It is important to note the breadth of defendant’s position: He did not state merely that application of the true-life sentencing option to him would violate ex post facto principles; rather, he insisted that he must be sentenced under the law as it existed at the time he committed his offense. The difference may be important, because the latter position does not leave room for an argument that, although the law is ex post facto, the ex post facto violation may be waived. In short, defendant’s position was that under no circumstances could he be sentenced to true life.”
In the state’s view, defendant is bound by that argument here.
We disagree. Even if defendant had made such an argument in Langley I — a point with which we do not necessarily agree — such an argument would have no bearing upon our present review of the remand proceeding, particularly in light of the rule announced in McDonnell, discussed below.
We now apply the rule from
McDonnell
to determine whether remand is appropriate in this case. The defendant in
McDonnell,
who committed his crime in 1984, filed a waiver of all
ex post facto
objections to retroactive application of the true-life sentencing option at a remand proceeding that took place in 1993. The trial court refused to provide the true-life instruction in accordance with
former
Here, defendant argues that, as in
McDonnell,
he was entitled to the true-life instruction at his remand proceeding, еven though that instruction was added by an amendment enacted after his crime. In
McDonnell,
this court concluded that, in enacting
former
The final question is whether, given our conclusion that the legislature intended that
former
The state argues, nonetheless, that this case is distinguishable from McDonnell in two ways. First, the state emphasizes that, in McDonnell, the state acquiesced in the defendant’s request to apply the true-life sentencing option, whereas, in this case, the state consistently has objected to application of that option. This court rejected that same argument in Rogers, 330 Or at 291:
“That the state objected to defendant’s waiver in this case, whereas, in McDonnell, it did not, makes no difference to the result. As this court observed in McDonnell, the ‘claim [that application ofORS 163.150(5) (1993) violated the prohibition against ex post facto laws] was defendant’s to assert, and he did not do so.’ 329 Or at 390. Any objection by the state to defendant’s waiver of the protection of the ex post facto clauses has no effect. Because defendant did not invoke those constitutional protections in this case, he waived those protections.”
(Brackets in original.) We reject the state’s argument here for that same reason.
Second, the state argues that this case differs from McDonnell because the trial court in the Langley I proceeding instructed the jury on the true-lifе sentencing option and the jury nonetheless sentenced defendant to death. The state argues:
“Defendant’s first jury, knowing that it had the option of sentencing defendant to ordinary life, true life, or death, chose the latter. In short, what defendant seeks here — an opportunity for a jury to consider the true-life sentencing option — he already has received. This court should not reverse defendant’s death sentence simply to allow a second jury to consider the options that one jury already has considered.”
Defendant counters that, although the jury in the Langley I proceeding was instructed on the true-life sentencing option, that jury received inadequate instructions on mitigating evidence. Defendant further points out that, although the jury in his remand proceeding received adequate instructions on mitigating evidence, it was not instructed properly on the true-life option. Defendant argues that he is entitled to a penalty-phase proceeding in which the jury properly is instructed in all resрects.
We agree with defendant. A properly instructed jury, that is, a jury properly instructed both on the true-life sentencing option and on mitigating evidence, could have returned a verdict supporting a sentence other than death. We reject the state’s contrary argument.
In sum, we conclude thát we must vacate defendant’s sentence of death and remand the case for further proceedings. See Rogers, 330 Or at 291-92 (reaching same conclusion and disposition); McDonnell, 329 Or at 392 (same). Defendant raises two additional assignments of error that are likely to arise on remand, which we address below. See, e.g., Rogers, 330 Or at 292 (following that methodology).
PRIVILEGED COMMUNICATIONS
Defendant contends that certain evidence was admitted at his remand proceeding in violation of the psychotherapist-patient privilege set out in OEC 504(2). Specifically, defendant objects to the admission of five exhibits and the testimony of eight witnesses (discussed in further detail below), the substance of which, to some extent, either pertained or referred to defendant’s participation in the CTP at the Oregon State Hоspital. In defendant’s view, the substance of all the evidence at issue constituted privileged communications under OEC 504, which provides, in part:
“(1) * * * As used in this section, unless the context requires otherwise:
“(a) ‘Confidential communication’ means a communication not intended to be disclosed to third persons except:
* * * *
“(C) Persons who are participating in the diagnosis and treatment under the direction of the psychotherapist, including members of the patient’s family.
“(b) ‘Patient’ means a person who consults or is examined or interviewed by a psychotherapist.
* * sfc *
“(2) * * * A patient has a privilege to refuse to disclose and to prevent any other person from disclosing confidential communications made for the purposes of diagnosis or treatment of the patient’s mental or emotional condition among the patient, the patient’s psychotherapist or persons who are participating in the diagnosis or treatment under the directiоn of the psychotherapist, including members of the patient’s family.” 7
Defendant further contends that the admission of the evidence at issue violated his right to privacy under the Due Process Clause of the Fourteenth Amendment to the United States Constitution. 8
In response, the state contends, among other things, that: (1) this court previously held in Langley I, 314 Or at 265-67, that defendant had waived his psychotherapist-patient privilege as to some of the communications at issue and, therefore, that particular evidence and other related evidence now is admissible as the law of the case; (2) much of the challenged evidence was not privileged in any event under OEC 504; and (3) defendant’s constitutional privacy argument is without merit.
We begin with the challenged exhibits and the state’s argument that this court’s decision in Langley I controls our determination of the evidentiary issue before us now. In Langley I, this court addressed the admissibility of three of the five exhibits at issue here, all of which arose from defendant’s participation in the CTP: (1) a “treatment contract” (exhibit 1140); (2) a “self-assessment” (exhibit 1141); and (3) a 13-page “life history” (exhibit 1297). 314 Or at 262. The court first determined that the psychotherapist-patient privilege set out in OEC 504(2) applied to each of those three exhibits. Id. at 263-64. The court then concluded, however, that, because exhibits 1140 and 1141 previously had been admitted during the Rockenbrant trial, defendant had waived his privilege as to those exhibits under OEC 511, which provides, in part:
“A person upon whom * * * Rules 503 to 514 * * * confer a privilege against disclosure of the confidential matter or communication waives the privilege if the person * * * voluntarily discloses or consents to disclosure of any significant part of the matter or communication. * * *”
(Brackets omitted.); Langley I, 314 Or at 264-65. Finally, the court reviewed the contents of exhibit 1297 and concluded that, under OEC 511, that exhibit disclosed a “significant part” of the communications contained in exhibits 1140 and 1141 because “[t]he subject matter of all [the] documents was the mental or emotional problems underlying defendant’s tendency to commit crimes.” Langley 1,314 Or at 266. Accordingly, the court concluded that, as with exhibits 1140 and 1141, defendant had waived his privilege in respect of exhibit 1297. Id.
Defendant argues that, as to those three exhibits,
Langley I
should not be deemed controlling because he personally and affirmatively had not waived his privilege during the Rockenbrant trial. This court rejected defendant’s similar argument in
Langley I,
noting that defense counsel in the Rockenbrant trial took time to review exhibits 1140 and 1141, and thereafter did not object to their admission.
Id.
at 265 n 14. We again reject defendant’s argument for that reason.
See Pratt,
316 Or at 569 (under doctrine of law of the case, earlier appellate court decision is binding and conclusive in subsequent proceedings involving same issue in same case);
Defendant also challenges the admission of exhibit 1104, which sets out a record of defendant’s requests for off-premises passes, as well as his check-in and check-out records. Although it is unclear from the record before us whether exhibit 1104, like exhibits 1140 and 1141, was admitted during the Rockenbrant trial, we have reviewed the record from the Langley I proceedings and have determined that that exhibit was admitted, without objection, 10 during the guilt phase. Consequently, even assuming (without deciding) that exhibit 1104 disclosed privileged communications under OEC 504, we conclude, for the same reasoning set out in Langley I, 314 Or at 264-65, that defendant waived his privilege in respect of that exhibit.
We turn to exhibit 1379, which consists of the following materials relating to defendant’s stay at the CTP: a face sheet summarizing defendant’s mediсal record; a list of the reasons for defendant’s admission to the CTP and his progress while in attendance; a psychological evaluation; a comprehensive list of chart notes dating from August 1987 to April 1988 that summarize defendant’s off-premises passes, check-in and check-out records, interaction with staff, and weekly progress updates; a psychological diagnosis update; information concerning defendant’s identified mental and emotional problems, and his treatment plan; progress records; and a security-action sheet. As with exhibits 1140, 1141, 1297, and 1104, defendant contends that exhibit 1379 consists of privileged communications under OEC 504(2) that should not have been admitted at trial. The state responds that, as with the other exhibits, defendant waived his privilege.
As noted, in
Langley I,
this court concluded that defendant had waived his privilege in respect of exhibits 1140 and 1141, the subject matter of which was defendant’s “mental or emotional problems underlying [his] tendency to commit crimes.” 314 Or at 266. Under OEC 511, a waiver occurs when the holder of the privilege “voluntarily discloses
or consents to disclosure of
any significant part
of the matter or communication.” (Emphasis added.) Like exhibits 1140, 1141, and 1297, a “significant part” of the material contained in exhibit 1379 relates to the mental and emotional problems underlying defendant’s tendency to commit crimes — in addition to other information concerning his treatment goals, progress, and a record of his leaving and returning to the CTP. Similarly, parts of exhibit 1379 duplicate much of the information contained in exhibit 1104, regarding defendant’s off-premises pass requests and check-in and check-out records. Because a “significant part” of the substance of exhibit 1379 previously was
In addition to the five exhibits discussed above, defendant contends that the trial court erred in admitting the testimony of eight witnesses, upon the ground that each witness testified as to confidential communication protected by the psychotherapist-patient privilege. The state responds that the objectionable subject matter of each witness’s testimony-fell within the scope of defendant’s waiver discussed in Langley I and, accordingly, that testimony must be deemed admissible under the law of the case. Alternatively, the state argues that much of the testimony at issue did not involve privileged communications.
For seven of the eight witnesses at issue, 11 we need not determine whether their testimony disclosed privileged communications under OEC 504 or whether that testimony fell within the scope of defendant’s waiver under OEC 511 concerning the exhibits at issue in Langley I. That is so, because those seven witnesses all testified without objection 12 during either the guilt or penalty phase of defendant’s trial in Langley I. We have reviewed the records from both that proceeding and defendant’s remand proceeding, and have concluded that each witness’s testimony, to the extent that it arguably disclosed any privileged communications, conveyed essentially the same information in both proceedings. 13 Accordingly, we conclude that, consistent with the analysis in Langley I, 314 Or at 264-65, 265 n 14, concerning defendant’s waiver of the privilege during the Rockenbrant trial, defendant similarly waived his privilege in respect of the communications disclosed in the testimony of those seven witnesses.
As to the eighth witness, Ulven, we conclude that her testimony did not disclose any privileged communication. Ulven, who is defendant’s second cousin, testified about a number of conversations that she had had with defendant while he was on family visits approved by CTP staff. In those conversations, which took place off the state hospital grounds, defendant told Ulven about his criminal record and his plans for the future. Nothing in the record demonstrates that Ulven was “participating in the diagnosis and treatment” of defendant “under the direction of [a] psychotherapist,” OEC 504(l)(a)(C), or that the communications were made “for the purposes of diagnosis or treatment of [defendant’s mental or emotional condition,” OEC 504(2). In short, defendant’s conversations with Ulven simply do not fit within the definition of “confidential communication” set out in OEC 504.
Defendant next contends that, in respect of all the challenged exhibits and testimony, an initial violation of the psychotherapist-patient privilege occurred when police
Assuming, without deciding, that CTP staff violated defendant’s psychotherapist-patient privilege when they spoke to investigators and testified before the grand jury, we disagree that such facts preclude the conclusion that defendant nonetheless voluntarily waived the privilege at a later time, specifically, during the Rockenbrant trial and the Langley I proceedings. At the outset, we note the well-settled principle that a privilege pertaining to confidential communications terminates upon the holder’s voluntary waiver:
“ ‘Briefly, a privilege is lost when the reason for it ceases to apply. As the commentary to Federal Rule 511 explains:
“ ‘ “The central purpose of most privileges is the promotion of some interest or relationship by endowing it with а supporting secrecy or confidentiality. It is evident that the privilege should terminate when the holder by [the holder’s] own act destroys this confidentiality. McCormick, Evidence §§ 93, 103 (2d ed 1972); 8 Wigmore, Evidence §§ 2242, 2327-2329, 2374, 2389-2390 (McNaughton rev 1961).
« < «‡ * * ‡ #
“ ‘ “By traditional doctrine, waiver is the intentional relinquishment of a known right. Johnson v. Zerbst, 304 US 458, 464, 58 S Ct 1019, 82 L Ed 1461 (1938). However, in the confidential privilege situations, once confidentiality is destroyed through voluntary disclosure, no subsequent claim of privilege can restore it, and knowledge or lack of knowledge of the existence of the privilege appears to be irrelevant.California Evidence Code § 912 ; Wigmore § 2327.” ’ ”
Goldsborough, 314 Or at 341 (quoting Commentary to OEC 511, reprinted in Laird C. Kirkpatrick, Oregon Evidence, 282-83 (2d ed 1989)) (emphasis added).
It follows from the foregoing that a voluntary waiver by the holder of a privilege to confidential communications can operate to terminate that privilege, notwithstanding that another participant in the communications might have violated the privilege at an earlier time without the holder’s knowledge or consent. Accordingly, we conclude that defendant’s waiver of his psychotherapist-patient privilege during the Rockenbrant trial and the Langley I proceedings as to the exhibits and testimony at issue оperated to terminate that privilege, notwithstanding possible earlier violations of the privilege by CTP staff and inmate participants. Compare State v. Miller, 300 Or 203, 709 P2d 225 (1985) (state-employed psychotherapist’s unauthorized disclosure of privileged communications to police deemed inadmissible in subsequent prosecution of criminal defendant; waiver not at issue).
Defendant next contends that, in disclosing privileged information to police investigators and the grand jury, CTP staff violated his right to privacy under the Fourteenth Amendment to the United States Constitution. We agree with defendant that, at the least, his constitutional right to privacy might have been implicated by those disclosures.
14
As explained earlier, defendant’s failure to object to the admission of certain exhibits and testimony dining the Rockenbrant trial and the Langley I proceedings constituted a voluntary waiver of his psychotherapist-patient privilege under OEC 511. See 331 Or at 442, 447 (under OEC 511, holder can waive privilege by voluntarily disclosing or consenting to disclosure of any significant part of communications; holder need not be aware of existence of privilege to waive it). In criminal cases involving constitutional rights, a waiver ordinarily is treated as “an intentional relinquishment or abandonment of a known right or privilege.” Johnson, 304 US at 464. However, the Supreme Court recently has noted that, in certain circumstances, the test for determining whether such a waiver has occurred can be a flexible one:
“What suffices for waiver depends on the nature of the right at issue. ‘[WJhether the defendant must participate personally in the waiver; whether certain procedures are’ required for waiver; and whether the defendant’s choice must be particularly informed or voluntary, all depend on the right at stake.’ United States v. Olano, 507 US 725, 733 (1993). For certain fundamental rights, the defendant must personally make an informed waiver. See, e.g., Johnson * * *, 304 US [at] 464-65 * * * (right to counsel); Brookhart v. Janis, 384 US 1, 7-8 (1966) (right to plead not guilty). For other rights, however, waiver may be effected by action of counsel. ‘Although there are basic rights that the attorney cannot waive without the fully informed and publicly acknowledged consent of the client, the lawyer has — and must have — full authority to manage the conduct of the trial.’ Taylor v. Illinois, 484 US 400 (1988). * * * Thus, decisions by counsel are generally given effect as to what arguments to pursue, see Jones v. Barnes, 463 US 745 (1983) [and] what evidentiary objections to raise, see Henry v. Mississippi, 379 US 443, 451 (1965) * * *. Absent a demonstration of ineffectiveness, counsel’s word on such matters is the last.”
New York v. Hill, 528 US 110, 120 S Ct 659, 664, 145 L Ed 2d 560 (2000). See also Taylor, 484 US at 418 (“Putting to one side the exceptional cases in which counsel is ineffective, the client must accept the consequences of the lawyer’s decision to forgo cross-examination [or] to decide not to put certain witnesses on the stand * * *.”).
In this case, defense counsel did not object to any of the evidence at issue upon privacy grounds during the Langley I proceedings. Accordingly, we conclude that defendant waived any privacy protection afforded to him under the Fourteеnth Amendment. 15
ACCOMPLICE INSTRUCTIONS
Defendant contends that the trial court erred in refusing to give five requested jury instructions concerning accomplice testimony, in connection with the testimony of Thayer, who was defendant’s girlfriend at the time of Gray’s murder. The requested instructions: (1) defined the term “accomplice witness”; (2) stated that defendant had the burden of proving by a preponderance of the evidence that a witness was an accomplice witness; (3) explained the preponderance-of-the-evidence standard; (4) stated that, if the jury found Thayer to be an accomplice witness, then it should view her testimony with distrust; and (5) defined the terms “aid[ ]” and “abet[ ].” The trial court refused to give those instructions, reasoning that they were not relevant to the penalty phase of defendant’s trial.
Defendant argues that the trial court should have instructed the jury that it could consider whether Thayer was an accomplice in Gray’s murder and, if it so found, that the jury should view her testimony with distrust. In defеndant’s view, such instructions would have served a mitigating purpose, because, so instructed, the jury might have determined that defendant should not be sentenced to death if it thought that Thayer also was involved in Gray’s murder. The state responds alternatively that: (1) as the trial court concluded, the instructions at issue are not applicable during a penalty-phase proceeding; and (2) in any event, defendant failed to present any evidence that tended to prove that Thayer had acted as an accomplice.
This court reviews a trial court’s refusal to give a requested jury instruction for error as a matter of law. State v. Moore, 324 Or 396, 427, 927 P2d 1073 (1996). For the reasons explained below, we conclude that the trial court did not err in refusing to give defendant’s requested accomplice instructions in the remand proceeding.
The issue of accomplice testimony generally arises under the corroboration requirement of
“(1) A conviction cannot be had upon the testimony of an accomplice unless it is corroborated by other evidence that tends to connect the defendant with the commission of the offense. * * *
“(2) As used in this section, an ‘accomplice’ means a ■witness in a criminal action who, according to the evidence adduced in the action, is criminally liable for the conductof the defendant under ORS 161.155 and 161.165[.]” 16
(Emphasis added.) In light of that corroboration requirement, juries are to be instructed, “on all proper occasions,” that “the testimony of an accomplice ought to be viewed with distrust.”
The corroboration requirement for accomplice testimony in
In a trial for aggravated murder, the jury addresses the issue of the defendant’s guilt or innocence during the guilt phase. If the jury determines that the defendant is guilty of aggravated murder, then the trial proceeds to the penalty phase. However, the jury does not address, during the penalty phase, the question whether the defendant committed the charged crime. Instead, the jury determines the appropriate penalty for the crime for which the jury found the defendant guilty during the guilt phase.
See
In short, within the structure of a trial for aggravated murder, only during the guilt phase does the jury decide whether to “convict” the defendant. That supports the conclusion that the corroboration requirement set out in
From the foregoing, we conclude that
REMAINING ASSIGNMENTS OF ERROR
We have considered defendant’s remaining assignments of error and have concluded that they involve either issues that this court previously has decided in the state’s favor or are not likely to arise on remand, or arguments that are not developed or are without merit.
CONCLUSION
In summary, we conclude that the trial court erred when it refused to permit defendant to wаive any
ex post facto
objection to retroactive application of the true-life sentencing option set out
informer
The sentence of death is vacated, and the case is remanded to the circuit court for further proceedings.
Notes
In enacting
On remand, defendant was sentenced to life imprisоnment with a 30-year minimum for the Rockenbrant murder.
As with
former
Article I, section 21, of the Oregon Constitution, provides, in part: “No ex-post facto law * * * shall ever be passed * Article I, section 10, of the United States Constitution, provides, in part: “No State shall * * * pass any * * * ex post facto Law * *
“(l)(a) Upon a finding that the defendant is guilty of aggravated murder, the court, except as otherwise provided in subsection (3) of this section, shall conduct a separate sentencing proceeding to determine whether the defendant shall be sentenced to life imprisonment, as described inORS 163.105(l)(c) , life imprisonment without the possibility of release or parole, as described inORS 163.105(l)(b) , or death. * * *.
“(b) Upon the conclusion of the presentation of the evidence, the court shall submit the following issues to the jury:
“(A) Whether the conduct of the defendant that caused the death of the deceased was committed deliberately and with the reasonable expеctation that death of the deceased or another would result;
“(B) Whether there is a probability that the defendant would commit criminal acts of violence that would constitute a continuing threat to society;
“(C) If raised by the evidence, whether the conduct of the defendant in killing the deceased was unreasonable in response to the provocation, if any, by the deceased; and
“(D) If constitutionally required, considering the extent to which the defendant’s character and background, and the circumstances of the offense may reduce the defendant’s moral culpability or blameworthiness for the crime, whether a sentence of death be imposed.
“(2)(a) Upon the conclusion of the presentation of the evidence, the court shall also instruct the jury that if it reaches a negative finding on any issue under paragraph (b) of subsection (1) of this section, the trial court shall sentence the defendant to life imprisonment withоut the possibility of release or parole, as described inORS 163.105(l)(b) , unless 10 or more members of the jury further find that there are sufficient mitigating circumstances to warrant life imprisonment, in which case the trial court shall sentence the defendant to life imprisonment as described inORS 163.105(l)(c) .
“(4) * * * Subsection (2) of this section shall apply only to trials commencing on or after July 19,1989.”
Former
“* * * Notwithstanding subsection (l)(a) of this section, the following shall apply: .
“(a) If a reviewing court finds prejudicial error in the sentencing proceeding only, the court may set aside the sentence of death and remand the case to the trial court. * * * Upon remand and at the election of the state, the trial court shall either:
“(A) Sentence the defendant to imprisonment for life in the custody of the Department of Corrections as provided inORS 163.105(l)(c) ; or
“(B) Impanel a new sentencing jury for the purpose of conducting a new sentencing proceeding to determine if the defendant should be sentenced tо:
“(i) Death;
“(ii) Imprisonment for life without the possibility of release or parole as provided inORS 163.105(l)(b) ; or
“(iii) Imprisonment for life in the custody of the Department of Corrections as provided inORS 163.105(l)(e) .
“(e) The provisions of this section are procedural and shall apply to any defendant sentenced to death after December 6,1984.”
In respect of defendant’s challenge to all the communications at issue, we note that neither party has questioned whether the psychotherapist-patient privilege applies when the relationship itself is imposed bj’ the state. As have the parties, we proceed on the assumption that it does.
The Fourteenth Amendment to the United States Constitution provides, in part: “No State shall * * * deprive any person of life, liberty, or property, without due process of law.”
Defendant contends that the doctrine of “the law of the case” should not apply here because he produced new evidence below demonstrating that he personally had not waived his privilege in respect of exhibits 1140 and 1141 during the Rockenbrant trial. Defendant is correct that, as a general matter, the doctrine of the law of the case is inapplicable in light of new facts or evidence bearing on the legal issue in question. See Huszar v. Certified Realty Co., 272 Or 517, 523, 538 P2d 57 (1975) (doctrine inapplicable where parties produce further evidence); Peltier v. Dahlke, 256 Or 84, 88-89, 471 P2d 434 (1970) (application of doctrine turns upon whether evidence offered at subsequent proceeding “substantially the same” as earlier evidence). However, defendant points to no part of the record — and we have found none — that supports his contention that he introduced further evidence establishing that he did not personally waive his privilege during the Rockenbrant trial.
We note that, during the Langley I proceedings, defense counsel initially objected to parts of exhibit 1104 upon relevance and prejudice grounds, but never upon privilege grounds. The state redacted the objectionable parts of the exhibit after conferring with defense counsel. That redacted exhibit appears to be the same as the exhibit at issue here.
Those seven witnesses were: Sampson (CTP program coordinator and provider of after-care treatment); Romany (CTP therapy supervisor); Northcott (CTP security director); Briggs (CTP night-shift security aide); McEvoy (CTP night-shift security aide); Layton (former inmate and CTP participant); and Gowin (former inmate and CTP participant).
We note that, in a few isolated instances, defense counsel in the Langley I proceedings did object during the course of certain witnesses’ testimony; however, such objections were not based upon the psychotherapist-patient privilege. We further note that one of the witnesses at issue, Samson, was called by the defense, as well as the state, during the Langley I proceedings, and testified in that regard as to some of the communications at issue.
We note that the testimony of Layton, a former inmate and CTP participant, during the remand proceeding, conveyed some additional information that his testimony during the Langley I proceedings did not convey. Specifically, Layton testified about defendant’s somewhat suspicious acquisition of a vehicle about the time when Rockenbrant was murdered, as well as two isolated incidents in which defendant had displayed aggression toward Layton while participating in the CTP. However, to the extent that that new testimony arguably disclosed any privileged communications under OEC 504, certain testimony of other witnesses during the Langley I proceedings — specifically, Romany (CTP therapy supervisor) and Briggs (CTP night-shift security aide) — disclosed a “significant part,” OEC 511, of Layton’s new testimony during the remand proceeding.
We note that, in Miller, 300 Or at 220 n 10, this court rejected a similar contention that an unauthorized disclosure of privileged information by a state-employed psychotherapist violated the defendant’s right to privacy under the Fourteenth Amendment. The Miller court relied upon Whalen v. Roe, 429 US 589, 97 S Ct 869, 51 L Ed 2d 64 (1977), for the proposition that the United States Supreme Court had rejected the notion that the doctor-patient relationship” falls within a constitutional zone of privacy. Miller, 300 Or at 220 n 10.
In Whalen, 429 US 589, the Supreme Court upheld a state statute that required physicians to report their patients’ prescriptions for certain controlled substances to the state, in light of strict statutory safeguards protecting against unwarranted disclosure. Upon further review of Whalen, we agree with defendant that that case does not preclude the conclusion that information conveyed to a psychotherapist during the course of the psychotherapist-patient relationship could fall within the privacy interests protected by the Fourteenth Amendment. Indeed, in Whalen, the Supreme Court stated that one type of privacy so protected is “the individual interest in avoiding disclosure of personal matters.” Whalen, 429 US at 599. Following Whalen, a number of courts have held that medical information falls within that protection, see Doe v. City of New York, 15 F3d 264, 267 (2d Cir 1994) (“the right to confidentiality includes the right to protection regarding information about the state of one’s health”); United States v. Westinghouse Elec. Corp., 638 F2d 570, 577 (3d Cir 1980) (to same effect), and some specifically have held that the psychotherapist-patient relationship also falls within that protection, see Hawaii Psychiatric Soc., Dist. Branch v. Ariyoshi, 481 F Supp 1028, 1038 (D HI 1979) (right to choose confidentiality “particularly crucial” in context of psychotherapist-patient communications); Hirschfeld v. Stone, 193 FRD 175, 185-86 (SD NY 2000) (disclosure of incarcerated criminal defendants’ psychiatric and medical information deemed to be invasion of constitutional right to privacy). See also generally Jaffee v. Redmond, 518 US 1, 11, 116 S Ct 1923, 135 L Ed 2d 337 (1996) (in concluding that psychotherapist-patient communications fall within federal evidentiary privilege, Supreme Court noted that protection of such communications from involuntarily disclosure “serves important private interests”).
Defendant also contends that, because the state violated his right to privacy, any additional information obtained from CTP staff and inmate particiрants was inadmissible as fruit of the poisonous tree. We need not address that argument, in light of our conclusion that defendant waived any right to privacy that might have been implicated.
Finally, defendant contends that the state should be estopped from prosecuting him using evidence obtained in violation of his psychotherapist-patient privilege and right to privacy. However, defendant did not make that argument in the trial court; therefore, we do not address it.
“A person is criminally liable for the conduct of another person constituting a crime if:
“(1) The person is made criminally liable by the statute defining the crime; or
“(2) With the intent to promote or facilitate the commission of the crime the person:
“(a) Solicits or commands such other person to commit the crime; or
“(b) Aids or abets or agrees or attempts to aid or abet such other person in planning or committing the crime; or
“(c) Having a legal duty to prevent the commission of the сrime, fails to make an effort the person is legally required to make.”
“Except as otherwise provided by the statute defining the crime, a person is not criminally liable for conduct of another constituting a crime if:
“(1) The person is a victim of that crime; or
“(2) The crime is so defined that the conduct of the person is necessarily incidental thereto.”
In this assignment of error, defendant also contends that the trial court’s refusal to give his requested instructions prevented the jury from considering mitigating evidence; at trial, defendant cited Penry v.
Lynaugh,
492 US 302, 109 S Ct 2934, 106 L Ed 2d 256 (1989), to support that proposition. However, the trial court’s proper refusal to give the requested instructions did not preclude defendant from arguing to the jury his theory that Thayer’s testimony was not credible because she might have been involved in Gray’s murder. Further, the trial court properly instructed the jury on mitigating evidence under the fourth question currently set out in