*1 Argued 2, judgment and submitted March affirmed as defendant’s conviction for aggravated murder; vacated; sentence of death case remanded to circuit court for proceedings July 9, further OREGON,
STATE OF Respondent, MICHAEL MARTIN MCDONNELL,
Appellant. (CC S38177) J85-0004; SC *2 479-a
479-b Deputy Stephen Salem, Williams, Defender, J. Public argued appellant. With him the cause and filedthe brief Sally Defender, and Diane L. Avera, Public the brief were L. Deputy Defender, Salem. Alessi, Public Attorney Salem, Peterson, General, J Assistant Brenda respondent. argued her cause filed the brief for With and Attorney General, Crookham, were Charles S. on the brief Virginia General, Janet Metcalf Linder, Solicitor A. L. Attorneys Rocklin, General, B. Assistant Salem. Robert HOOMISSEN, J.
VAN opinion. Fadeley, J., filed an dissented and *4 HOOMISSEN, VAN J. an and
This is automatic direct review of a judgment of conviction of murder and sentence of death. aggravated 163.150(1)© (1987) (now Former ORS ORS 163.150(l)(g)). reversal of aggravated Defendant seeks his conviction for murder. he asks this court to vacate Alternatively, his sen- We affirm tence death. defendant’s conviction. We vacate his death and remand sentence of this case to the circuit court for further consistent with this proceedings opinion.
SUMMARY OF FACTS The found defendant We therefore view guilty. State the evidence most favorable to the state. light (1991). Rose, 274, 276, 810 P2d Or 1984, In defendant was charged with the murder of Keever after defendant had from a Joey escaped 163.095(2)©.1 state or correctional penal facility. Defendant had been to the committed previously 16, and was received there on Oregon Penitentiary May 1984. He was to the Farm Annex on November 9 and assigned November 21. He was still custody from an escaped he killed Keever. day on the escapee the trial court set aside the indictment 163.095(2)© defendant, that ORS vio- against concluding Constitution, I, Oregon Article sections 16 and lated to the Constitution of the United Amendment Eighth States, an unconstitutional sentence. imposed because trial, case for reversed and remanded the Court of Appeals autho- fact that a statute sentencing “[t]he concluding sentence of an unconstitutional imposition arguably rizes the statute the crime violates defining any not mean that does * * * the trial constitutional provisions [cited of the provides part: ORS 163.095 section, ‘aggravated murder’ means “As used in ORS 163.105 under, accompanied which or murder as defined in ORS 163.115 is committed any following by, circumstances: state, had “(f) «(2) been county The murder was committed after the defendant [*****] returned to the or municipal custody penal or correctional facility.” facility and before the defendant had escaped from a *5 McDonnell, 278, 281, court].” 84 Or App P2d (1987). 935, den Or 455 rev 1988, At his trial defendant stipulated that he caused Keever’s death her with cutting knife. His defense was that he did so while in a drug-induced psychosis that, and condition, while he was he was unable form the necessary intent to commit the crime aggravated of murder and therefore, he was guilty only of the crime of manslaughter.
Martin and Thompson Jennifer for testified the state 22, on December they were driving to a livestock auction. They stopped observe pickup at railroad on tracks Boswell Road near Drain. Springs They thought that the had been in pickup an accident because it was parked against the tracks. Martin left his Thompson car to investi- and gate saw defendant with a knife hand his and blood on himself. Defendant told “to hell Thompson get the out of there.” As returned to car Thompson get his a gun, defendant threw Keever out of the at her with pickup, slashed knife, and drove off at high speed.
Keever got up and ran toward the Thompsons. Her throat had been cut. The Thompsons placed Keever their car and drove her to the Drain fire station, where volunteer ambulance crew commenced measures. life-saving Keever on dead arrival at the Douglas Community Hospital. blood, cause of death was loss due to primarily Roos, severing Keever’s neck vessels. Dr. per- who formed found 40 knife autopsy, wounds Keever’s body, including multiple chin, neck, hands, chest, wounds to the eight abdomen. Keever had stab wounds on her right hand and 13 on her left. Roos characterized them as wounds, “defense” which he described as “where occurring someone and then grabbing away it’s something pulled here, there, and then it On just slices through, everywhere.” death, after Keever’s Sheriff day Deputy Cannaday time, arrested defendant. At the defendant had scratches on his face and some cuts on the back of his index and right A middle criminalist testified for the state that he fingers. wounds,” would not consider cuts to be “defensive these fingers. the wounds were on backs of defendant’s because hair, fingernails, of head blood were taken from Samples His hair matched strands head hair found defendant. in the of each of Keever’s fingers intertwined hands. Blood the back of defendant’s matched pants found on Keever’s blood. trial, guilty
After a defendant was found jury In a separate sentencing hearing, murder. answered in the affirmative the three then questions 163.150(l)(b). See posed post, ORS at 506. The trial by former sentencing then entered an “order” to death. court 163.150(5). Later, granted by to leave pursuant McDonnell, (1988), court, *6 court entered a of conviction and sentence judgment the trial of death. is the time that this court has reviewed
This second Although and sentence. defendant defendant’s conviction on several his conviction and death sentence first challenged limit review agreed by the to his first grounds, parties court had in denying whether the trial erred addressing only attorney the district to offer require motion to defendant’s aggravated the charge an to opportunity plead him a life under and to receive sentence murder former had attorney the district argued Defendant 163.150. discussion plea process, role the prescribed abdicated his the seq, ORS 135.405 et usurped allowed to be and victim’s parents. McDonnell, 98,Or 135.415, of ORS statutory found a violation
(1990), this court controlling were the victim’s wishes parents’ because “the defen- accept [not decision attorney’s district factor the judg- vacated the this court Accordingly, offer].” dant’s plea trial “for an case to the court remanded the ment and attorney] the [district to determine how hearing evidentiary on the basis and discretion his judgment exercised would have he at the time existed and the facts that criteria of proper Id. at 106. This agreement.” into the plea to enter declined that: directed court that the evidence, trial court finds
“If, hearing the after the same decision have reached attorney would district proper the accused prosecution of with the proceed of conviction and sentence judgment then the grounds, be and an death shall reinstated therefrom appeal may If, however, proceed. the trial court that the [district finds then, have attorney] negotiated plea, would as accepted concedes, the state shall to enter permitted plea guilty the crime of murder and the shall trial court sentence him to life imprisonment.” Id. at 106-07. remand,
On the trial court found: “Upon testimony a review of the and presented, evidence finding record supports prosecutor Court that had criteria, the following considered which the finds Court to be proper, facts that existed at the time he decided agreement, to enter he [whether] into the would have proceeded prosecution: “1) well-being The emotional mental of the victim’s family.
“2) legal Genuine question to the lawfulness or plea bargaining unlawfulness of certain offenses. “3) The quality reduction of the of evidence caused by litigation delay.
“4) strong response by The need for a the State for a particularly outrageous against act a victim the com- at munity iarge.
“5) penalty Oregon Whether the death the state practice, reasonably expected actual result such to justify long, arduous trial.
“6) attempt large to resolve cases that demand *7 amounts of court and its the impact time on effective justice. administration “7) The guilty plea allowance of a defendant’s and/or for his and its
acceptance responsibility positive actions on the impact process. rehabilitative “Accordingly, the Court that based on the above finds criteria, the proper prosecutor proceeded would have to trial added.) (Emphasis the case.” that, We the trial court’s to mean quoted findings interpret remand, after the the court found hearing evidence on had the deferred to the wishes of the attorney district not had he after family i.e., independently, victim’s acted criteria, he have reached would considering appropriate the with the prosecution the same decision to proceed defendant. Based on those to this findings, pursuant McDonnell, in State v. 310 Or at supra, court’s directive 106-07, the trial reinstated the of conviction court judgment of death ordered. This second auto- previously sentence was filed in this matic review then court. proceeding We now to consider defendant’s assignment proceed remand, assignments error on as well as his other alleging first during error that were not considered our review. I. PRE-TRIAL MOTIONS to Compel Motion Plea Offer contends that trial court erred on Defendant remand in his motion to the district denying require attorney to charge aggra offer him an to plead to opportunity under ORS vated murder and receive life sentence to former not attorney He that the district did consider argues 163.150. whether deciding accept criteria” in “any appropriate “but, rather, left decision to the offer plea defendant’s compel asks court “to [district victim’s He parents.” opportunity plead to offer defendant attorney] life under and to receive a sentence charge former ” 20, of I, Article section He relies primarily 163.150. Clause of the Constitution,2 and the Protection Oregon Equal of the United Amendment to the Constitution Fourteenth whether a defendant improp This court reviews States.3 Farrar, law. offer an error of denied erly plea (1990). 132, 139, Or in State v. McDon- first review of this issue
After our to the trial court nell, necessary remand we found the record was inade- evidentiary hearing, because for an decision attorney’s what the district to determine quate offer, had the defendant’s regarding have been would the wishes reliance on attorney placed dispositive district I, 20, provides: Article section privileges, any grantingto or class of citizens passed he citizen “No law shall belong terms; which, equally to all immunities, upon shall not the same or citizens.” provides part: Amendment The Fourteenth ** * equal jurisdiction deny any person within its “No shall protection of the laws.”
485 the court, victim’s 310 Or at parents. 106-07. The trial as noted, that, found even without his deference to the wishes parents, attorney the victim’s the rejected district would have defendant’s offer. If that of fact plea finding supported by Ball v. record, evidence in the we are bound on by appeal. Gladden, (1968). 485, 487, P2d record,
The now reveals the complete, following facts:
William Lasswell was the Douglas District County when Attorney Oregon voters penalty reinstated death when defendant murdered Keever later that same year. At the time of this murder and at the time defense counsel proposed plea office, offer to district attorney’s Lasswell’s view was once a defendant was indicted for murder, aggravated was not bargaining At permitted. remand, evidentiary hearings Lasswell explained: my we, “It was understanding of law at that time that as prosecution, had to present Assuming best [our] case. murder, we have a guilty verdict aggravated [of] we had to present our best case on those three [penalty phase] issues and the I would decide them. So did not feel that we had words, discretion. In other I didn’t assess or the office didn’t assess those issues at the time the charging [decision].”
The criminal was to Charles investigation assigned Lee, Lasswell’s Chief shortly after the murder was Deputy, committed. Lasswell and Lee made the decision to charge Lasswell, murder. According “ charging very [the was a decision straight-forward decision] ** * us particular
because this death to have appeared * * * been fell committed someone who within one of the [aggravated categories, therefore the penalty murder] death * * * witnesses, would eye there were appropriate couple eye killing, strong witnesses to the so it was a case. — did person allegedly killing fell within the was an so it escapee go.” case,
Lee intended case a death try penalty and he Lee communicated that decision to defense counsel. testified that District Attor- policy Douglas County office murder cases was ney’s concerning aggravated life in death penalty “there wouldn’t be plea bargaining agreed interpretation of cases.” He with Lasswell’s the death penalty statutes in existence at the time. *9 Douglas County given deputies were
Trial consid- assigned leeway plea negotiations cases, in their erable they plea provided bargaining policy. that acted within the confines office deputy assigned aggra-
However, a to an have allowed to deviate vated murder case would not been clearing plea bargaining policy it of no without from the office by questioning at or Lee. defense counsel with Lasswell the On explained: evidentiary hearing remand, Lee assigned Had the case been “[DEFENSE COUNSEL:] had her views deputy] to trial and Champion [another Mrs. an propriety negotiating to the respect differed with negoti- free to murder case would she have been aggravated an murder case? aggravated ate we I so. I think that would have “[LEE:] don’t think out, to it plead that bit and if she wanted quite
chewed on a [Lasswell] [me] had that either have to convince she’s to have switched another right thing do or we’d that was the again that case position to take over but DA into that Deputy pretty that’s theoretical.” days the trial of this few before noted,
As a begin, uncon- trial court declared to case was scheduled portion aggravated murder statute that that stitutional aggravated punished that intentional murder murder an escapee. The state one who was an was committed appeal ruling, appealed could felt that the and Lasswell prepared proceed year. delay to Lee was the case at least one plea ruling. No discus- of the trial court’s to trial at the time not inter- date, Lee was occurred before sions had plea. negotiating life sentence a ested ruling, Following law- defense court’s the trial lawyers pro- regarding plea. yers approached The Lasswell guilty plead to posed would that defendant present any evidence murder, then decline the state would accept penalty phase, life “would and defendant at the meeting, advised Lasswell end of the At the sentence.”4 place date of before the effective in this case took at issue discussion 557, § Under the ch 1. Or Laws ORS 163.150. amendment the 1987 former guilty aggravated murder and the state statute, pleads when defendant amended sentencing, purposes present evidence that it declines to the court advises
defense counsel that he would need to discuss the defense proposal parents. with Lee and with the victim’s meeting lawyers,
Before with the defense Las- parents, swell had had a number of contacts with the victim’s primarily with the victim’s mother. Lasswell felt that the just victim’s mother “was overwhelmed with emotions involving daughter’s her death.” Lasswell also knew that at stalking one time the victim’s father was the streets with a gun. parents, As a result of his contacts with the victim’s very [their] Lasswell “was concerned about emotional health thought important [he] present and their welfare so just [been] them this offer that had received.” proposed plea agree- Lasswell’s assessment of the exclusively [his] ment was [the “almost based on concern for parents’] victim’s emotional health and welfare.” He was they through concerned that “wouldn’t make it another year.” parents they Had the victim’s told Lasswell that could *10 year,” “not take another then Lasswell “would have told [Chief Deputy] [Lasswell’s] Lee that it was recommendation accept plea bargain.” willingness that we Lasswell’s to plea solely [his] consider a “was based on concern for the [of parents].” welfare the victim’s
Although Lasswell also had a concern about the delay by appeal that would be caused an of the trial court’s ruling potential and the might that evidence or witnesses appeal pending, become unavailable while the was that con- very, very sideration was “a minor one.” He also considered possibility delay might the prolonged that the even be more appellate unwillingness “okay because of the court’s to an execution.” Those other considerations, however, did not * * * “any independent have force noted, at that time.” As willingness plea solely Lasswell’s to consider a “was based on [his] [of parents].” concern for the welfare the victim’s parents rejected plea proposal.
The victim’s the The considering victim’s father “was offended” that Lasswell was imprisonment empaneling jury. court sentences a defendant to life without a Before change, accept plea this the trial court could a defendant’s to murder and impose negotiated only by empaneling holding a life sentence first a and a sentencing hearing present any support at which the state declined to evidence to a sentence of death. the He told Lasswell that “both he and his family’s welfare. the wife wanted to ahead with case even it was go though ’’ least The of the year. position family to take at another going lawyers. to the defendant’s relayed reliance on the victim’s fam- dispositive Lasswell’s led at that time to our reversal remand in ily’s wishes McDonnell, remand the had On trial court to supra. decision would have been had it determine what Lasswell’s During been considerations. appropriate based to asked the court evaluate by remand Lasswell was hearing, in terms of the criteria set out ORS 135.415.5 this case Lasswell testified: so, After doing — plea accepted, if if had of been obvious that “It’s case, a or been cleared of that month
the docket would have It months, been tried. is true so other cases could have two guilt, acknowledgement an of it would have been by 135.415(2) says statutory language [ORS] of acceptance acknowledgment responsibility an there would have been in poten- of the supposed and that’s one considerations finality far as tial and also some rehabilitation somewhat wrong- person as a community identifying particular a offer, be, plea a appeared And fact that he under doer. confinement, years of a substantial twenty at least spend * * * so, know, you safety community to the measure of — been problem trial would have then we have some provides: ORS 135.415 plea purpose determining engage discussions for the “In whether account, may plea attorney reaching agreement, take into but not the district to, any following limited considerations: “(1) insuring by the defendant has aided applications prompt measures to defendant. and certain correctional “(2) acknowledged guilt willingness and shown The defendant has responsibility for of the defendant. assume the conduct “(3) possible made will make alternative *11 The concessions state rehabilitative, achieving adapted to are measures which better correctional treatment, prevent purposes or will protective, or of correctional deterrent other from form of conviction. harm the defendant the undue “(4) good unnecessary are public trial when there The made defendant had having public in trial. case dealt with reasons for not the “(5) cooperation the given cooperation when or offered The defendant has prosecution of offenders may the other in successful has resulted or result equally criminal conduct. engaged more serious serious or “(6) avoiding delay plea has aided the defendant The the thereby probability of increased the disposition cases and has of other in the other application measures to offenders.” of correctional prompt and certain * ** being there these thought spite I that
avoided but * * * offer, make a that you might plea want to why, reasons community the and that was, outrageous against an act themselves how clearly expressed had Oregon people officials, including law enforcement wished their they only kind of situation. That react to this myself, to we, Lee, was as Mr. had method of proceeding appropriate situation, with the agreed go which I was to ahead seen the * * * So, would have been some reasons there penalty. death bargain separate par- [victim’s from the making ** * —there was I, any but there was never feelings ents’] do, my mind about what we should any question never I only question was that which mentioned going ahead. things, of parents’] was the welfare. Other [victim’s
before course, they if had said being we can tack them on as reasons * * * * ** all, have anymore, take it there would we can’t decision but I was been a lot of other reasons to bolster their I haven’t probably about their welfare. really only concerned the question. answered
“Q. [what I Court wanted to know guess Supreme take into consideration you you done] would have didn’t if I answer would have been feelings. gather your you their from — with the case? you proceeded would have added.) Absolutely.” (Emphasis “A. words, only
In other that consideration impact was to have was in family’s preference going defendant’s And it was because the victim’s did simply parents favor. had no that consideration that the district attorney ask for Thus, to trial. in the absence of other reason not to proceed — it from Lass- removing consideration intervening — have the case would pro- well’s decision-making process that Lasswell would as it did. The trial court found just ceeded on the a number of criteria proper have considered he not have offered defendant criteria, basis of those would life sentence. moment defendant is clear that from the
The record murder, attorney the district charged At penalty. intended to seek the death and the chief deputy remand, lawyers the defense evidentiary hearings in his decision to seek Lee never wavered admitted this case was also testified that Lasswell penalty. death intervened to consider case until he a death always penalty told Once the parents victim’s parents. wishes of the *12 they proceed Lasswell that too wished this case to as a death penalty “go case, Lasswell told Lee with the to ahead” trial. Clearly, accepted testimony the trial court believed and the of Lasswell and Lee on issue. challenge accuracy any
Defendant does not
the
of
of
findings
findings
trial
the
court’s
on remand. Those
are
supported by
dispositive
evidence in the record and are
of this
supra,
Gladden,
issue. Ball v.
Permissibility Denial
Plea
of
Offer
attorney’s
Defendant next attacks the district
deci-
deny
plea
ground
purely
to
sion
the
offer on the
that it “was
systematic
haphazard
part
policy.”
coherent,
a
According
haphazard
defendant,
to
the decision was
two
particular
concerning
reasons: “There were no
standards
any
plea bargain
given
be offered
case” and
when
should
plea
up
“[t]he
was left
decision whether to extend a
offer
to
According
deputy.”
defendant, the
each individual
attorney
district
overriding
admitted that his
concern was the
“candidly
He
parents.
emotional health and welfare of the victim’s
did
concerning plea bargains,
not have a
but
systematic policy
the
on an individual
This is
deputies
left
decision
his
basis.
making condemned in
type
the
of ad hoc decision
precisely
(1983)].”
Freeland,
P2d
[295 Or
the record. Both Lasswell and
Defendant misreads
proposed
plea
at
time defendant
his
Lee testified that
policy
no
was that there would be
of the office
offer
charged
aggravated
bargaining
a defendant was
with
once
charge
defen-
and Lasswell made the decision
murder. Lee
aggravated
of the case fit
murder because the facts
dant with
—
categories
aggravated
murder
murder
after
one
—
strong.
escaping
facts
the case were
and because
charging
prosecutors
relied
on which
factors
permissible.
v. Far-
were
See State
murder
(probable
to believe that
cause
rar,
For the
we conclude
same
of
Protection Clause
shown
the Equal
has not
violation
any
See
to the federal constitution.
Fourteenth Amendment
(“the
Freeland,
are
v.
Comparative Agreements Defendant this court should argues determine whether he denied a offer when unfairly plea his situa tion is to that of compared other defendants with charged aggravated murder the state. He throughout asserts that should be 163.150(l)(g) interpreted to state require wide “proportionality review.” This court has recently an rejected identical contention related to sen comparative Montez, tence review. supra, State v. 607; 309 Or at Wagner, vacated 115, 169-71, (1988), P2d 1136 and remanded on other grounds 914, 109 3235, 492 US S Ct (1989). L106 Ed 2d 583 We decline defendant’s invitation to — attempt inquire into the if that proportionality — correct word in the availability for the plea bargaining, same reasons in our recent expressed cases discussing propor review of sentences. tionality
Defendant also relies on the Equal Protection Clause
of the Fourteenth Amendment
to the Constitution of the
Farrar,
United States. In State v.
supra,
309 Or at
we
I,
concluded that under Article
section
of the Oregon
Constitution,
“the appropriate persons for the
analysis
treatment are
disparate
those who have been
charged
[the
same
with
county]
aggravated
Defendant
murder[.]”
makes
no separate argument as to
the result would be
why
any
the Fourteenth Amendment. See State v.
different under
(for
Freeland,
supra,
Moreover, were we inclined review for such even no record exists here for such a proportionality, adequate review. Defendant if his case is argues compared *15 those of other defendants the state who faced the throughout will that he was unfairly death be penalty, “apparent” However, a the extent of the record here is a denied offer. 494 status of penalty
list
cases
murder/death
Court Administrator’s
in June
compiled by
State
Office
does
is to
explain
compare
1989. Defendant
not
how
court
cases of the other defendants on
his case
that
list
looking
dispositions.
at a list of names and
Defen-
merely by
showing disparate
dant
the burden of
treatment. See
bears
(1985)
Bruner,
271,
P2d
262,
v.
City
(defendant
Salem
how the choice of
procedure
must show
the choice was a purely haphazard
administered and that
(the
Clark,
one);
Motion to Act As Co-Counsel trial Defendant contends that court erred to him to in the trial as participate proceedings allow refusing he a to co-counsel. has constitutional act argues right He I, trial, At he relied on Article exclusively as co-counsel. section Constitution.7 Oregon court, counsel’s written motion the trial defense wishes to have option “[defendant asserted Later, dire, during in his defense.” voir fully participate advised the trial court that defendant’s again defense counsel him as fully” to have co- request “participate motion was counsel, to defense According counsel the trial. throughout to the rules as counsel defendant “would be subject [same] he anyway of the Court as subject discipline are and that there would be if no cause believe and that there’s [sic] or any problem.” any disruption that, arguing attorney objected,
The district mistrial, error, of all sorts risk of “because of the increased learned someone who is not letting from created problems should be defendant’s motion the law lawyer,” act further He argued denied. a chance of the defendant stands extent that “because executed, has he eventually personally
being convicted has end. He proper the trial come to seeing no stake in real a mistrial rules because follow the Court’s no reason to I, provides part: Article section * * * right prosecutions, shall have the accused “In all criminal and counsel.” heard himself *16 hardly
[based would] on defendant’s misconduct be a sanc- against tion him even if he did the proper know rules.” attorney district with defense disagreed counsel’s asser- tion, that defendant would be to the same subject as discipline lawyers, arguing disbarred, “the defendant can’t be it would take something very [and] drastic his to cause part him courtroom, to be removed from the he can hardly suspended from the or practice of law fined if mis- he Finally, attorney behaved.” the district reminded the court that defendant three lawyers had defense him. representing
In Stevens, 119, 123-25, Or (1991), this court held that a defendant has no state constitu tional right to “hybrid” representation. Under a form hybrid of representation, act, defendant and in effect, counsel as co- counsel, with each for the defense speaking different during See 2 phases Israel, trial. LaFave and Criminal Pro 11.5(f) (1984) 51, § cedure raised in a substantial (although number cases, this contention failed to has either persuade courts). federal or state Having rejected Stevens the same constitutional advanced we argument here, hold that court the trial did not err in rejecting defendant’s argument that he had a state constitutional to right act co-counsel, have i.e., to hybrid representation.8 Stevens, however,
As this court noted in
a trial court
allow,
has discretion to
as well as
deny, hybrid
representa
case,
tion.
In the trial denying defendant’s court explained: is, course, case,
“This
capital punishment
and it
argued
participate
that the defendant should be allowedto
Yet,
very
possible.
fullest extent
it is the
nature of the
error
potential
case that dictates that the
be minimized.
168, 183-84, 104
Wiggiens,
S Ct
79 L
McKaskle v.
465 US
Ed 2d
(1984),
reh’g
Supreme
den
II.
Instructions
Defendant
contends
the trial court erred
two
instructions
that he
one
refusing
give
requested,
term “conscious” and one
effect
defining
regarding
and less
evidence.”
satisfactory
“weaker
*17
Each of
contentions will be addressed
defendant’s
so, however, we note two broad considera
doing
turn. Before
contentions
and that
us
guide
that
to those
tions
apply
First,
court “must
generally,
their
trial
evaluating
efficacy.
reject
to each case and
those instructions which apply
choose
v.
Ireland
hypothetical.”
abstract or
those which are merely
(1961). Second, when
Mitchell,
286, 292,
He instruction as requested did to the instructions, give jury, containing which the court The two instructions stated: given the word “conscious.” or ‘with intent’ when that ‘intentionally’ “A acts person (1) objective either to cause a acts with a conscious person (2) result; engage particular conduct.” or particular added). 161.085(7)) (ORS (emphasis “ bodily movement ‘Voluntary performed act’ means a possession the conscious or control consciously and includes added). (ORS 161.085(2)) (emphasis of property.” need not be words of common Generally, usage 523, 539-40, Nefstad, State v. 309 Or defined for the jury. Nichols, (1990); 521, 535, 388 P2d P2d 1326 (1964). case, we In the context of this believe and that was usage is a word of common term “conscious” not The trial court did without elaboration. understandable instruction. See requested defendant’s refusing give err in (defendant’s Montez, 600-01 309 Or at added nothing). instruction requested Evidence” Instruction Satisfactory “Less court erred the trial Defendant contends “weaker and instruction on jury his failing give requested evidence.” satisfactory less all proper “on 10.095 provides part, be instructed:
occasions,” the is to “(7) estimated, its only by evidence is to be That according to the evidence weight, but also intrinsic own *18 and ofthe other to produce of one side which it is in the power therefore, contradict; and, “(8) satisfactory evidence less if weaker and That satisfactory and more stronger that appears when offered was within offered the evidence party, the power the with distrust.” be viewed should be instructed: that the requested Defendant evidence, the may consider you the you evaluate “When If evidence. produce was weaker gather prosecution the power and less prosecution by offered the evidence stronger or more satisfac- than other satisfactory evidence offered, then have could prosecution which tory evidence satisfactory less evidence view the weaker and you should with distrust.”9 trial, his testified at his
Although principle limited application instruction requested state. The trial court declined by evidence submitted instruction. requested defendant’s give argues: Defendant offered that the state could have
“The record shows unable to find investigators that were stronger evidence its woods, in the clothing and the knife abandoned defendant’s marijuana. The state’s victim did or did not use and that the the area where that a limited search of evidence showed made, thorough rather than a defendant was found was argued The state that as missing find the items. attempt to items, be inferred that finding the it could result of not credible. testimony was not defendant’s whom defendant addition, of the witnesses “In most drug were reluctant to do Keever’s use testify called to so and had about being the stand than when upon taking less recall There evidence investigator. was by interviewed the defense drug regarding Keever’s use. to the state available circumstances, the trial court erred “Under these upon request.” instruction defendant’s refusing give no that defendant cites to notes, correctly, state made attorney any where the district in the record place items, it of not finding “that as a result at trial argument testimony that defendant’s be inferred could credible.” suggests in the record nothing argues
The state concerning offer that it did not it had evidence any or clothing, and defendant’s weapon for the murder search evidence and additional have obtained the state could that, although further argues to do so. The state failed simply Jury reads: Instruction No. 1025 Uniform Criminal ‘ evidence, may power you of the state to you consider the ‘When evaluate weaker and the state was gather produce If the evidence offered evidence. satisfactory satisfactory stronger evidence which the or more than other less satisfactory offered, you less view the weaker and then should could have state with distrust.” evidence rarely given in a opinion, should explained that instruction in this reasons For the case. criminal *19 the it was aware defendant’s assertion at trial that victim death, had used various before her it was not drugs incum- use, bent on the state offer evidence of which to such the state use at did not and which defendant to dispute, argued length the jury. Mains, 640, 647-48, v. Or State
(1983), this court stated: gives
“This case an in opportunity plain us to reiterate and certain the ‘weaker terms that and less satisfactory 10.095(7) instruction, (8), evidence’ ORS should not be given case whether or defendant criminal not the takes stand, except the in those rare because of instances where an proof asserted defense the defendant has the burden on an example, issue in the For when a defendant elects case. to evade because attempt responsibility his conduct defect, 161.295, disease or mental ORS the defendant has the of proof burden on that issue. Unless such a defense has been by the the satisfactory asserted defendant ‘weaker and less given. may evidence’ instruction not be We believe such a instruction, prevent rule will further confusion about this appropriate guidance to trial courts and provide avoid omitted.) (Footnote unnecessary appeals.” (and In footnote “Of analysis) opinion without added: if course, it is the instruction proper give statutory specifi- n by Relying defense[.]” Id. at 648 5. cally requested footnote, that, he requested defendant asserts because instruction, erred in it. For refusing give the trial court follow, disagree. reasons that we Mains, v. did not mean to State suggest supra, We any time it is trial court must instruction give instruction contrary, the defense. On by requested Mains, at v. Or See State rarely given. should defense the (unless, asserted affirmative because of an 647-48 case, in the on an issue has the of proof burden is perhaps The instruction given). should not be instruction as any presently the evidence to a comment on close ORCP 59E cases. See most is not appropriate allowed fact, to matters (“The respect shall not instruct judge trial of criminal thereon”), applicable made comment nor 136.230. actions
Moreover, with the advent of reciprocal discovery,
ORS 135.805 et
if
seq;
the state has
requirement
the defense or
of evidence favorable to
knowledge
exculpatory
an
nature,
the state is under
affirmative due process
Mary
defense,
Brady
make it available to the
obligation
land,
ex
83, 83
1194, 10
(1963);
L Ed 2d 215
373 US
S Ct
*20
Connall,
94, 475
Dooley
rel
v.
(1970);
257 Or
P2d 582
and the
tecum,
duces
subpoena
for the
availability
necessity
Brewer,
instruction will be rare in a criminal case. See State v.
(Me 1985) (in
774,
case,
A2d
777
a criminal
the failure of a
505
to call a witness does not
party
permit
opposing party
draw, any
the factfinder to
inference as to whether
argue, or
the witness’
would be favorable or unfavorable to
testimony
the defendant will have
Generally,
knowledge
either party).
Evidence,
of and access to the same evidence as the state.
See
therefore,
is
available to both
normally
equally
parties.
(4th
1992) (“A
184-89, §
Evidence
ed
McCormick on
a conservative
support
approach [to
number of factors
inference]”); 2
Evidence
Wigmore,
on an adverse
instructing
(Chadbourn
1979) (failure
evidence,
produce
§ 285
rev.
as
evidence).
tenor of
unfavorable
indicating
The trial
has discretion to refuse the
judge
statutory
instruction,
it is an abuse of discretion
if the evi
only
Ireland
dence in the case makes the instruction
appropriate.
Mitchell,
supra,
In the the trial must decide what judge first On court must appeal, appellate is a occasion.” “proper as much as is recapture, review the evidence and try possible, atmosphere guided trial which the trial judge’s ruling. Id. at 292. persuasive Appeals
We find several Court of deci- concerning giving satisfactory sions ofthe “less evidence” instruction. App McNassar,
In State v.
77 Or
“The penalize party failing instruction does not Rather, produce all available evidence. jury’s draws the to a party’s produce attention failure to evidence when that give could rise to an that the evidence would failure inference — is, be adverse to the party appears when it that the may party trying something.” to hide 77 App Or at 218 (emphasis original). App Sellers,
In State v.
*21
(1985),
(1986),
rev den
In State
62 Or
659 P2d
Woodfield,
(1983),
rev
iijfc
‡ $
$ $
in
is that the state did not
only
“The
indication
this record
The
any
‘prestigious
have
evidence that was not offered.
they
analysis
not conducted
experts’ testified that
had
experts
the hair. There is no contention that the
bullets or
who did conduct the
was no error
qualified
tests
not
to do so. There
were
’’62
give
in
court’s
the instruction.
refusal
original).
(emphasis
Or
at 73-74
App
(1981),
Brock,
785,
Or
Finally, Whaley out of an (1980), an action for damages arising P2d 667 error on as collision, assigned defendants automobile satisfactory trial “less the refusal of the court give appeal their Appeals rejected Court instruction. evidence” contention, stating: witnesses, three by plaintiff
“Four doctors were called *22 fact that other witnesses are and available and could defendants. The one testimony regarding the give competent not that the evidence offered is at trial does establish issues weaker and less more little satisfactory. record establishes the not called as opinions that the two doctors than opinion of have been cumulative of the Dr. witnesses would court, having heard the evidence and Schwerzler. The trial having an appreciation atmosphere trial, of the of the con- cluded the instruction was not appropriate.” App 44 Or at 544-45. sum, case, in a criminal the statutory “less satis 10.095(7)
factory
instruction,
evidence”
(8),
should
be
It
rarely
given.
may, however, be
“where
appropriate
because of an asserted affirmative defense the defendant has
Mains,
the case.” State v.
the burden of
on an
proof
issue
supra,
Moreover,
Judgment of trial court erred Defendant next contends he for a of murder. judgment Specifically, his motion denying constitutionality particulars, various challenges, Moreover, nothing arguing precluded to the defense counsel from trial, satisfactory allegedly it failed to evidence at the state offered less because guilty beyond prove a reasonable doubt. Our review its burden sustain record, however, argue principle of less indicates that counsel did jury. satisfactory to the evidence his summation *23 504 the crime of 163.095(2)(f), aggravated which defines
ORS
dictates the
163.105, which
murder after
and ORS
escaping,
murder.11 He
found
of
guilty
aggravated
for a
penalty
person
a
count of
single
he was indicted for
that, because
argues
163.095(2)(f) and sentenced
murder under ORS
aggravated
163.105, and
under ORS
for a violation of that statute
unconstitutional,
this case should
are
because those statutes
his
and
judgment
the trial court to vacate
be remanded to
and sentence for the lesser
and
impose judgment
sentence
of intentional murder.
included crime
that ORS
things,
other
argues, among
Defendant
163.095(2)(f)
16,12
I,
violate Article
section
and ORS 163.105
Constitution,
impermissibly
because they
of the Oregon
to the offense commit-
so
penalty
disproportionate
impose
men as to
of all reasonable
ted as to shock the moral sense
I,
Article
that those statutes violate
what is
and
right
proper;
who
Constitution, because
20,
persons
of the Oregon
section
differently
treated
are impermissibly
murder while escaping
their
have
they
completed
who murder after
than those
unconstitutionally
vague
those statutes are
and that
escape;
21, of the
I,
Oregon
10 and
of Article
sections
violation
Fourteenth
Process Clause of the
and the Due
constitution
All of
the United States.
the Constitution of
Amendment
v.
State
rejected
been addressed and
have
those contentions
(1992).
Isom, 313
397-402, 391,
Or
163.095(2)(f) and
that ORS
Defendant also argues
Amendment
to the United
the Eighth
163.105 violate
ORS
11
163.095(2)(f)
1986,
noted,
was unconstitu
that ORS
the trial court held
In
20,
Oregon
Eighth
I,
Constitution and
16 and
of the
Article
sections
tional under
of
Constitution. The Court
to the United States
Fourteenth Amendments
“imposing
that, although
may
however, reversed, stating
it
be that
Appeals,
minimum)
(or
30-year
on a defendant
imprisonment with a
penalty
life
death
163.095(2)(f)
more of the above constitutional
violates one or
ORS
convicted under
163.095(2)(f)
any penalty;
impose
merely
defines a
provisions,
does not
ORS
935,
McDonnell,
rev den
proportioned to the
Constitution,
narrowing
“because there is no genuine
States
no
the death
penalty
class of
eligible
persons
a more severe
reasonably justifying
imposition
scheme
guilty
to those found
compared
on one person
sentence
v.
left
State
open
That
argument
expressly
murder.”
at 398 n 10.
Isom,
supra,
Farrar,
this court stated:
v.
mur
category
aggravating factor or
“An
if it does
Eighth Amendment
vague in violation of the
der is
for the
eligible
class of persons
narrow the
genuinely
356, 108
Cartwright, 486 US
Maynard
See
v.
penalty.
death
(1988);
Georgia,
Godfrey
L Ed 2d 372
S Ct
*24
(1980),
den 456
1759,
in this case. murder felony than is broader escaping after overlap among there is or whether first degree, in the escape at issue subsection subsections, particular or whether Rather, it to be. would like broader than case is this impermissibly at issue category is “whether the question 506 murders.” Id. at 185. Clearly, almost all
could be applied 163.095(2)(f), is “no.” ORS the answer to that question escaping, murder after provision defining aggravated category That a discrete class of criminal conduct. describes means, almost all murders. not, by any applicable could 163.150(2)(f) hold, therefore, genuinely that ORS We for the class of who are eligible narrows the clearly persons violate the Amendment. Eighth and does not death penalty supra. Farrar, v. State the trial court did not err Accordingly, judgment motion for entry defendant’s denying murder. PENALTY
III. PHASE Mitigating Evidence erred in contends the trial court
Defendant instructions on refusing requested penalty phase his give concedes, we agree, The state evidence. mitigating were inadequate comply court’s instructions the trial Wagner, v. in State 5, 14-20, 786 court’s opinion cert L den_US_, 212, 112 Ed 2d 171 S Ct P2d II), (Wagner (1990) in this was decided after the trial which Pinnell, case. See State v. n 98, 117-18 30, 806 Or P2d (1991) Oregon the development forth (setting Isom, 313 Or at “fourth question”); held under adequate instructions evidence” (“mitigating constitutions). we vacate Accordingly, and federal state to the and remand this case sentence death defendant’s *25 consistent this further proceedings court for circuit opinion.
CONCLUSION and of defendant’s guilt considered each We have made error and every argument of assignments phase penalty dis- or argument Any assignment thereof. in support previously considered has been opinion in this cussed taken, unlikely or is defendant, is not well against resolved of guilt phase as to the find no error remand. We recur on of his phase error as to penalty trial. We find defendant’s phase only. the penalty as to and reverse trial convic- as to defendant’s affirmed is judgment The vacated. of death is The sentence murder. for aggravated tion
507 circuit for further proceed- is remanded to the court case consistent with this opinion. ings
FADELEY, J., dissenting. of portion
I dissent from the remand for retrial of in the dissenting portion my case for reasons stated was previously when this case opinion entered separate McDonnell, ago, this court over two 310 years before (1990). which 98, 106, 118, bargain, P2d 780 The plea Or 794 life,1 should be imprisonment called for sentence to or additional trial or other expense enforced. No further death determine whether life or is to needed to proceeding the penalty. be chosen the result of
Additional recent cases that support Canada, v. as I include U.S. urge, the plea bargain, enforcing (1st 941 F2d 905 1992); Goroza, U.S. v. 263, F2d Cir 960 (9th 1013, 1 1991), Walker, v. 54 Cal 3d Cal Cir and People (1991). 861, 2d 819 P2d Rptr for a remand new majority’s I also dissent from in the first three trial for the reason stated penalty-phase Williams, my dissenting opinion paragraphs (1992). 44-45, Or bargain (deleting plea motion to enforce the At the time of defendant’s 163.150(2) dissent), provided condition, my original illegal ORS discussed in guilty upon guilty murder the defendant is found “[w]hen * * * * * * * *** sentencing, purposes of present evidence for the state declines prescribed imprisonment as to life sentence the defendant court shall 163.105.”