STATE OF OREGON, Respondent, v. ANDREW SCOTT METZ, Appellant.
CC91-1287; CA A76618
Court of Appeals of Oregon
December 14, 1994
131 Or App 706 | 887 P2d 795
Argued and submitted April 28, convictions affirmed; sentence vacated; remanded for resentencing December 14, 1994
Janet A. Metcalf, Assistant Attorney General, argued the cause for respondent. With her on the brief were Theodore R. Kulongoski, Attorney General, and Virginia L. Linder, Solicitor General.
Before Deits, Presiding Judge, and Riggs and Haselton, Judges.
Deits, P. J., dissenting.
Defendant was convicted of aggravated murder for stabbing to death an elderly couple and was sentenced to life imprisonment without the possibility of release or parole.
After the jury was empaneled, defendant argued that his indictment did not charge aggravated murder and moved to be allowed to plead guilty to two counts of murder. Defendant assigns error to the court‘s denial of that motion and to the court‘s submission of the charge of aggravated murder to the jury.1
Under
“A statement of the acts constituting the offense in ordinary and concise language, without repetition, and in such manner as to enable a person of common understanding to know what is intended.”
To state facts constituting an offense, an indictment must “allege each of the essential elements of the offense.” State v. Wimber, 315 Or 103, 109, 843 P2d 424 (1992). However,
“Words used in a statute to define a crime need not be strictly pursued in the indictment, but other words conveying the same meaning may be used.”
See also State v. Cohen, 289 Or 525, 529, 614 P2d 1156 (1980). Finally, an indictment should serve the following functions:
“(1) to inform the defendant of the nature of the crime with sufficient particularity to enable him to make his defense, (2) to identify the offense so as to enable the defen
dant to avail himself of his conviction or acquittal thereof if he should be prosecuted further for the same cause, and (3) to inform the court of the facts charged so that it may determine whether or not they are sufficient to support a conviction.” State v. Montez, 309 Or 564, 597, 789 P2d 1352 (1990).
The essential elements of aggravated murder under
“[M]urder as defined in
ORS 163.115 which is committed under, or accompanied by, any of the following circumstances:* * * * *
“(d) There was more than one murder victim in the same criminal episode as defined in
ORS 131.505 .”
Defendant‘s indictment charged that:
“COUNT I
“[Defendant] on or between September 8, 1991 and September 9, 1991, in the County of Clatsop, State of Oregon, then and there being did unlawfully and intentionally caused the death of another human being, to-wit: Ellen McKinnon, by stabbing said Ellen McKinnon, said defendant having caused the death of an additional human being, to-wit: Duncan McKinnon, by stabbing said Duncan McKinnon,
“COUNT II
“as a part of the same act and transaction as alleged in Count I hereof, the said defendant did unlawfully and intentionally cause the death of another human being, to-wit: Duncan McKinnon, by stabbing said Duncan McKinnon, said defendant having caused the death of an additional human being, to-wit: Ellen McKinnon, by stabbing said Ellen McKinnon * * *.”
Defendant argues that the indictment is insufficient because it fails to allege that “there was more than one murder victim in the same criminal episode” as required for a conviction of aggravated murder under
Reading each count separately, see State v. Johnson, 80 Or App 350, 355, 722 P2d 1266 (1986), we conclude that the language used in the indictment was such as “to enable a
Defendant next assigns error to the court‘s admission of statements that defendant made to the state‘s psychologist, Dr. Abrams, without first being told of his right to have counsel present during the interview. Abrams explained to defendant that he was working for the prosecution and that anything defendant told Abrams could be used against him. However, Abrams did not warn defendant of his right to have counsel present during the examination. In the examination, defendant made material and potentially prejudicial admissions to Abrams.
Since Shepard v. Bowe, 250 Or 288, 293, 442 P2d 238 (1968), the Supreme Court has repeatedly held that criminal defendants cannot be compelled to answer questions pertaining to their alleged crimes in pretrial psychiatric examinations, and that defense counsel must be allowed to attend such examinations for the purpose of advising their clients against self-incrimination. State v. Mains, 295 Or 640, 669 P2d 1112 (1983), details the information that defendant must
“In the absence of legislation, we believe that the following are the relevant information and warnings required in the setting of a psychiatric examination of a defendant conducted on behalf of the state to guarantee the right not to be compelled to testify against oneself in a criminal prosecution under Article I, Section 12, of the Oregon Constitution.
“If counsel is not present at the examination * * * the defendant should be asked by the examiner whether he understands that counsel is entitled to be present and has consented to be examined in the absence of counsel. The defendant should further be informed that the examination is conducted on behalf of the prosecution and its results will be available for use against the defendant without the confidentiality of a doctor-patient relationship.” 295 Or at 645. (Emphasis supplied.)
The state argues that the purpose of the Mains-prescribed warnings was satisfied in this case because Abrams clearly told defendant that he was in an adversarial posture, i.e., that Abrams was working for the state and that defendant‘s statements could be used against him. The state points, particularly, to State v. Stevens, 311 Or 119, 138, 806 P2d 92 (1991) (Stevens I), where the court distinguished Mains from other interrogation situations by explaining that the point of Mains was to ensure that the defendant does not “misunderstand the nature of the relationship between himself and the psychiatrist.” However, nothing in Stevens I repudiates Mains’ mandate that the defendant be informed of both the adversarial nature of the examination and the right to have counsel present. Here, Abrams did not comply with the second requirement.
The state also argues, however, that Abrams’ warnings were adequate because, the day before the psychological examination, officers had twice informed defendant of his Miranda rights, including the right to counsel and, on the second reading, defendant informed the officers that he practically had the warnings memorized. Under certain circumstances, earlier warnings remain valid for purposes of later questioning. See Stevens I, supra, 311 Or at 138 (the defendant who was warned of rights immediately before being transferred to a police car for questioning did not need to be
The state argues that even if Abrams’ testimony was tainted by noncompliance with Mains, any error in the admission of that testimony was harmless. We agree. As to the guilt phase of defendant‘s trial, there was overwhelming evidence of guilt, including defendant‘s confession to the police officers that he killed the victims. Accordingly, the error was harmless under any standard.3 With respect to Abrams’ testimony during the penalty phase, defendant argues, without elaboration, that Abrams’ testimony was “much more detailed than defendant‘s statements to the police.” Defendant does not identify any particulars in which Abrams’ penalty phase testimony materially and prejudicially differed from other evidence properly before the jury. In such circumstances, we will not search the record or speculate about possible prejudice. Again, the evidentiary error was harmless.
Finally, defendant argues that the trial court erred in admitting evidence during the penalty phase about the impact of the murders on the victims’ adult children and their families. That testimony was tragic and compelling. The victims’ daughter, who found them in the motel room, testified: “Every time I close my eyes, I see my mother‘s dead body, I see my father‘s face and the slashes in his neck.” She also testified that her “sense of security” was gone and that it
In Payne v. Tennessee, 501 US 808, 111 S Ct 2597, 115 L Ed 2d 720 (1991), the Supreme Court overruled Booth v. Maryland, 482 US 496, 107 S Ct 2529, 96 L Ed 2d 440 (1987), and South Carolina v. Gathers, 490 US 805, 109 S Ct 2207, 104 L Ed 2d 876 (1989), and held that the Eighth Amendment does not bar states from choosing “to permit the admission of victim impact evidence and prosecutorial argument on that subject.” Because there is no federal constitutional impediment to the admission of victim impact or family impact evidence, we consider only whether such evidence is admissible under Oregon law. Our task is further narrowed because defendant raises no challenge under the Oregon Constitution. Thus, the issue before us is purely statutory.
Defendant asserts that victim impact testimony was inadmissible as immaterial to any issue in the penalty phase of an aggravated murder trial, including jurors’ consideration of the so-called “fourth question.”
“(1)(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 in
ORS 163.105(1)(c) , life imprisonment without the possibility of release or parole, as described inORS 163.105(1)(b) , or * * * death. In the proceeding, evidence may be presented as to any matter that the court deems relevant to sentence; however, neither the state nor the defendant shall be allowed to introduce repetitive evidence that has previously beenoffered and received during the trial on the issue of guilt. The court shall instruct the jury that all evidence previously offered and received may be considered for purposes of the sentencing hearing. * * * * *
“(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 expectation that death of the deceased or another would result;
“(B) Whether there is a probability that the defendant would commit criminal acts of violence that would constitute a continuing threat to society;
“(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) Whether the defendant should receive a death sentence.
* * * * *
“(f) If the jury returns an affirmative finding on each issue considered under paragraph (b) of this subsection, the trial judge shall sentence the defendant to death.” (Emphasis supplied.)
The statute further provides, in
“(A) In determining the issues in paragraph (b) of this subsection, the court shall instruct the jury to consider any mitigating circumstances offered in evidence, including but not limited to the defendant‘s age, the extent and severity of the defendant‘s prior criminal conduct and the extent of the mental and emotional pressure under which the defendant was acting at the time the offense was committed.
“(B) In determining the issue in subparagraph (b)(D) of this subsection, the court shall instruct the jury to answer the question ‘no’ if one or more of the jurors find there is any aspect of the defendant‘s character or background, or any circumstances of the offense, that one or more of the jurors believe would justify a sentence less than death.”
The state contends that victim impact evidence is relevant to
“entitled to produce evidence that makes it less probable that one or more jurors will answer the fourth question ‘no.’ * * *
“In this case, the victim impact evidence was relevant to rebut defendant‘s mitigating evidence, which was intended to convince the jurors that these murders were an aberration in defendant‘s life, that he would not be a danger in the future, and that he did not deserve the death penalty.”
The trial court agreed:
“[T]he defendant is asking the jury to act on sentiment, emotion and pity, and these kinds of things, and it seems to me, if all those things go to question four, victim impact ought to go to question four, and, yeah, in order to as a practical matter in order to save time and trouble by allowing a standing objection, I will do that, but I believe now that my ruling is what is good for the goose is good for the gander, actually, and all those things ought to go to the number four question.”
The Oregon Supreme Court recently discussed the scope and meaning of the fourth question in State v. Stevens, 319 Or 573, 879 P2d 162 (1994) (Stevens II). After finding the text and context of
“[The bill amending
ORS 163.150 ] would substitute a new fourth factor that a jury is required to consider in deciding whether or not a person convicted of aggravated murder should be executed. This would conform our statute to language recommended by a recent Oregon Supreme Court case, State v. Wagner.” Testimony of Senator Shoemaker, Senate Floor, Tape 195, Side B at 45-48, June 26, 1991.
In short, the legislature adopted the fourth question for a specific purpose, i.e., to ensure consideration of evidence pertaining to mitigation, with particular reference to a defendant‘s character, background or crime. The state is, of course, entitled to specifically controvert mitigating evidence adduced by a defendant. However, the legislature did not intend to throw the penalty phase of capital cases open to consideration of any evidence that might sway the jury in one direction or the other.
We particularly note that there is no reference in the legislative history to victim impact evidence. That absence of discussion is unsurprising, because, at the time the legislature developed the current language of
This history persuades us that victim impact evidence was not, and could not have been, in the minds of the legislators who enacted the fourth question. Nor can it reasonably be viewed as falling within the categories of evidence that those legislators clearly did have in mind—evidence pertaining to mitigation, with particular reference to the defendant‘s character or background or the circumstances of the crime. We conclude, therefore, that victim impact evidence is immaterial to the fourth question.
The dissent‘s contrary position, that victim impact evidence is admissible as generally “relevant” under
Second, the dissent‘s “relevance” rationale artificially, and erroneously, divorces relevance from materiality. Evidence is relevant only if it tends to make a material fact more or less probable than it would otherwise be. OEC 401.7 The only fact material to the jury‘s consideration of the fourth question, as enacted in 1991 and construed in Stevens II, is mitigation, with particular reference to the defendant‘s character or background, or circumstances of the offense. See Stevens II, supra, 319 Or at 583. Because victim impact evidence, by its very nature, does not pertain to that material fact, it cannot be relevant under
As an alternative basis for affirmance, the state argues that victim impact evidence is relevant to the second and third questions the jury must consider under
“[T]he fact that defendant brutally stabbed and murdered two elderly (and presumably relatively defenseless) people is directly relevant to his future dangerousness and to the lack of provocation on the part of the victims.
ORS 163.150(1)(b)(B) , (C). That defendant would commit such a murder in a motel, where other guests, who might includemembers of the victims’ family, would be almost certain to be traumatized by discovering the victims, also is relevant to his future dangerousness.”
The state‘s argument is inapposite; the examples it gives are not examples of victim impact evidence. The subsequent impact of the crime on the victims’ family, however tragic and devastating, is not relevant to whether defendant‘s conduct was deliberate,
Finally, the state briefly argues, as yet another alternative basis for affirmance, that victim impact evidence should be admissible under
“At the time of sentencing, the victim or the victim‘s next of kin has the right to appear personally or by counsel, and has the right to reasonably express any views concerning the crime, the person responsible, the impact of the crime on the victim, and the need for restitution and compensatory fine.”
ORS 137.013 .
The broad language of
Here, defendant was not sentenced to death but was, instead, sentenced to life imprisonment without the possibility of release or parole.
“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 subsection (1)(b) of this section, the trial court shall sentence the defendant to life imprisonment without the possibility of release or parole, * * * 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 in
ORS 163.105(1)(c) .” (Emphasis supplied.)9
Defendant asserts, in particular, that, but for the erroneous admission of the family impact evidence, 10 jurors might have found “sufficient mitigating circumstances to warrant life imprisonment” with the possibility of parole.10
Convictions affirmed; sentence vacated; remanded for resentencing.
DEITS, P. J., dissenting.
I agree with the majority opinion in all respects except for its conclusion that the trial court erred in admitting victim impact evidence in the penalty phase of defendant‘s trial. Accordingly, I dissent.
The majority is correct that in Payne v. Tennessee, 501 US 808, 111 S Ct 2597, 115 L Ed 2d 720 (1991), the Supreme Court held that the Eighth Amendment does not bar states from choosing to allow the admission of victim impact evidence during sentencing proceedings in capital cases. I also agree with the majority that there are no constitutional issues raised in this case; rather, the question here is whether the evidence is admissible under applicable Oregon statutes. My disagreement with the majority is in its conclusion that the pertinent statutes do not allow the admission of victim impact evidence.
“(A) Whether the conduct of the defendant that caused the death of the deceased was committed deliberately and with the reasonable expectation that death of the deceased or another would result;
“(B) Whether there is a probability that the defendant would commit criminal acts of violence that would constitute a continuing threat to society;
“(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) Whether the defendant should receive a death sentence.” (Emphasis supplied.)
Finally,
“(A) In determining the issues in paragraph (b) of this subsection, the court shall instruct the jury to consider any mitigating circumstances offered in evidence, including but not limited to the defendant‘s age, the extent and severity of the defendant‘s prior criminal conduct and the extent of the mental and emotional pressure under which the defendant was acting at the time the offense was committed.
“(B) In determining the issue in subparagraph (b)(D) of this subsection, the court shall instruct the jury to answer the question ‘no’ if one or more of the jurors find there is any aspect of the defendant‘s character or background, or any circumstances of the offense, that one or more of the jurors believe would justify a sentence less than death.”
The majority concludes that because the legislature enacted the fourth question to ensure consideration of mitigating evidence relevant to a criminal defendant‘s character, background or crime, it necessarily precludes consideration of any other evidence. I believe that the majority has ignored the plain language of the above provisions to create an ambiguity where none exists. It then unnecessarily relies on legislative history to resolve that perceived ambiguity.
The real issue in this case is, what evidence does the statute authorize a jury to consider in the sentencing phase of a capital proceeding? In construing a statute, the best evidence of the legislature‘s intent is the text of the provision itself. Also informative at this first level of the analysis is the context of the provision at issue. PGE v. Bureau of Labor and Industries, 317 Or 606, 610-11, 859 P2d 1143 (1993). Here, the statute specifies that the parties may present any evidence that the sentencing court deems relevant to sentencing.
Under my reading of the statute, the pertinent question is whether the sentencing court erred in concluding that the evidence offered here was relevant. In Payne, the Supreme Court made it clear that
“[a] State may legitimately conclude that evidence about the victim and about the impact of the murder on the victim‘s family is relevant to the jury‘s decision as to whether or not the death penalty should be imposed. There is no reason to treat such evidence differently than other relevant evidence is treated.” 501 US at 827.
The sentencing court‘s decision that the victim impact evidence was relevant to the question of whether defendant should receive a death sentence was completely consistent with Payne and, in my opinion, was correct.
Because the sentencing court concluded that the evidence here was relevant, it is not necessary to rely on
“At the time of sentencing, the victim or the victim‘s next of kin has the right to appear personally or by counsel, and has the right to reasonably express any views concerning the crime, the person responsible, the impact of the crime on the victim, and the need for restitution and compensatory fine.”
ORS 137.013 .
The meaning of the statute is clear on its face; there is absolutely nothing in the statute that limits this right to certain types of crimes. The plain language of the statute specifically authorizes victim impact evidence at all sentencing proceedings.
The majority concludes that
The majority concludes that
“We are now of the view that a State may properly conclude that for the jury to assess meaningfully the defendant‘s moral culpability and blameworthiness, it should have before it at the sentencing phase evidence of the specific harm caused by the defendant. ‘[T]he State has a legitimate interest in counteracting the mitigating evidence which the defendant is entitled to put in, by reminding the sentencer that just as the murderer should be considered as an individual, so too the victim is an individual whose death represents a unique loss to society and in particular to his family.’ Booth [v. Maryland], 482 US [496], 517, 96 L Ed 2d 440, 107 S Ct 2529 (White, J., dissenting) (citation omitted).”
The voters’ adoption of
Defendant also argues here that
For all of the above reasons, I would hold that the victim impact testimony here was admissible, and I would affirm the defendant‘s sentence. I respectfully dissent.
Notes
“The text of
It is dangerous to speculate about such “choices.” We can never know what Oregonians might have done in 1986, if Payne had then been the law. We can only know that, when Ballot Measure 10 was approved, the presentation of victim impact evidence in capital cases was prohibited under the federal constitution. In that context, the measure‘s victim impact provisions could only be understood to refer to non-capital proceedings.
“If sentenced to life imprisonment, the court shall order that the defendant shall be confined for a minimum of 30 years without possibility of parole, release on work release or any form of temporary leave or employment at a forest or work camp.”