*1 Argued September judgment submitted of conviction and sentence of 6, 1996 death affirmed December
STATE OF OREGON, Respondent, v.
JERRY LEE MOORE, aka Harry Charles Moore,
Appellant. (CC S40506) 92C-20781; SC
397-b *4 397-c
397-d Groom, Defender, Salem, David E. Public Deputy argued the cause for With him on the briefs was L. appellant. Sally Avera, Public Defender. B. Rocklin, Attorney General, Salem,
Robert Assistant the cause for him on the With briefs were argued respondent. Theodore L. L. Kulongoski, Attorney General, Virginia Kristin Linder, General, Preston, Solicitor N. Assistant General. Attorney
397-e Carson,
Before Chief Justice, Gillette, Van Hoomis Fadeley, sen, Graber, and Durham, Justices.* CARSON, C. J.
Fadeley, opinion. J., dissented and filed an *6 * Unis, J., 30,1996, retired June participate and did not in this decision.
397-f *7 CARSON, C. J. upon case
This comes before this court automatic following and of a death, aggravated direct review sentence of defen- dant’s for convictions three counts of murder and involving persons, murder, two counts of of two deaths felony and two additional convictions. Defendant seeks or, reversal of all seven in the alternative, convictions asks us to vacate his sentence of and death remand this case for resentencing. For the reasons stated we affirm below, defen- dant’s convictions and the sentence of death.
I. SUMMARYOF FACTS
jury
guilty
Because the
found defendant
of all the
charged,
presented
crimes
we view
evidence
at trial in
light
state.
v. Charboneau,
most favorable to the
See State
(1996) (stating principle).
40-41,
38,Or
Defendant was convicted of his mother- family description in-law and his relationships A brief father-in-law. helpful involved in this case is in order to underlying understand the facts. Defendant was married to (“defendant’s Cynthia wife”), Moore who also was defendant’s (“defen- Cunningham half-niece. Barbara Lauri Thomas dant’s father-in-law,” mother-in-law” and “defendant’s respectively, in-laws”), or “defendant’s the two murder vic- parents tims, wife; were the of defendant’s defendant’s also mother-in-law was defendant’s half-sister. Irene Moore (“defendant’s mother”) was the mother of defendant and of his mother-in-law. Defendant and wife had (“defendant’s daughter daughter”), who was about seven months old when defendant committed the crimes of which he was convicted. spring daugh-
In the his of1992, wife, ter, and father-in-law all the same house in Salem. lived mother, Defendant’s mother-in-law lived with defendant’s May relationship During elsewhere in Salem. strained, between defendant and had his in-laws become questioned validity because defendant’s had in-laws marriage daughter. At around that same their leaving began time, defendant’s wife to think about defen- plans. dant. She did not tell defendant about her *8 Defendant that his wife began suspect was plan- to leave him and that she would take their ning daughter weekend, her. On Day with Memorial defendant threatened his wife with a and said that he would kill her or gun anyone else who tried to take their from him. Several daughter away later, defendant’s wife called the who arrested days police, defendant. After released from being jail, removed some items, later used personal including gun to shoot his in-laws, from the house that he shared his wife, with daugh- ter, father-in-law, and and moved into his mother’s house. Defendant’s mother-in-law then moved out of that house and into the house shared by wife, daughter, father-in-law.
On 5, 1992, June defendant drove to the main post office in Salem, knowing his father-in-law had gone there to check his mailbox. Defendant waited for his father- in-law to come out of the office and watched post him into get his truck in the lot. Defendant parking then walked over to the truck and shot and killed his father-in-law. Defendant next went to the house that his wife and daughter were shar- with his ing in-laws. Defendant kicked in the front door and shot his times, mother-in-law several her in killing front of his wife. Defendant then took his wife and daughter outside house, forced them into his vehicle, and left Salem.
Defendant drove back to Salem later that with night his wife and He daughter. went to his mother’s house, which was being searched by police, was arrested at that time. Defendant later told the investigating detective that he had killed his in-laws in order to their stop interference with his with his relationships wife and daughter.
The state charged defendant with two counts of 163.095(l)(d) (counts murder, ORS aggravated one and two of the indictment); one count of murder, aggravated ORS 163.095(2)(d) (count three)1; two counts of murder, ORS (1991) provided, part: ORS 163.095 in section, ‘aggravated “As used in ORS 163.105 and this murder’ means under, accompanied murder as defined in ORS 163.115 which is committed
by, any following circumstances: * * * “(l)(a) five) 163.115(l)(a) (counts in 2; four and one count burglary (count six)3; and one count of kidnapping first degree *9 (count seven).4 A defendant jury convicted degree the second counts. the of defendant’s Following guilt phase of all seven murder counts aggravated the trial court trial, merged and counts. After the jury the murder burglary with in the statutory the four penalty-phase questions answered the court sentenced defen affirmative, 163.150(l)(b), ORS 163.150(l)(f). ORS dant to death. error upon raises 12 assignments
Defendant trial and of his review, relating guilt phase six direct «‡ ‡ ‡ ‡ ‡ “(d) episode than one murder victim in the same criminal There was more in ORS 131.505.”
as defined 163.095(2)(1991) addition, provided, part: in ORS “(d) 163.115(l)(b), personally Notwithstanding ORS defendant intentionally set forth in committed the homicide under the circumstances 163.115(l)(b).” ORS (1991) 163.115(1) part: provided, in ORS murder:
“[C]riminal homicide constitutes } n : «‡ jj: ‡ tfc * * * * * * “(b) by person of the it committed who commits When is person following the crime the in the course of and in furtherance of crimes and * * * * * * person committing person other than one causes the death of a is participants: * * * *
“(C) Burglary degree 164.225!.]” in the first as defined in ORS 2 163.115(1)(1991)provided, part: in ORS constitutes murder: “[C]riminal homicide * * * “(a) intentionally [.]” it is committed When (1991) 164.225(1) provided, part: in ORS burglary degree person in the first if the person the crime of “A commits building dwelling!.]” is a 164.215 and the violates ORS (1991) 164.215(1) provided: ORS person burglary degree in the second if the person commits the crime of “A unlawfully building with intent to commit a crime in a
enters or remains therein.” (1991) 163.225(1) part: provided, in ORS if, kidnapping degree in the second with person commits the crime of “A liberty, substantially personal without with another’s intent to interfere authority, person: legal consent or “(a) person place another!.]” from one Takes relating penalty phase. assign- six We discuss each ment of error below.
II. GUILT PHASE Suppression A. Statements of Defendant’s assigns
Defendant first error to the trial court’s parts pretrial denial of of defendant’s motion, omnibus suppress which had moved to all statements that he police after made, arrest, his to two detectives and to a psychologist. arguments, state-hired Defendant makes three which we address in turn. We conclude that none of those arguments is well taken. chronology
The relevant is as follows. Defendant immediately upon returning arrested was house to his mother’s shortly midnight before on June 1992. After one detective, Peterson, told defendant that he was under arrest, *10 you may said, know, “I but first,” want this and gun handed his to Peterson. After Peterson handcuffed defendant, another detective, Stoelk, moved defendant into a warnings, bedroom. Stoelk then read defendant Miranda orally acknowledged warnings and defendant those and agreed speak Following with Stoelk. a brief interview, police Shortly Stoelk drove defendant to the station. after midnight again on 6, June 1992, Stoelk read defendant warnings. orally Miranda Defendant consented to another signed acknowledgment advice-of-rights interview and an card.
Following psycholo- interview, Dr. Cochran, gist by police state, hired examined defendant at the sta- tion, between about 1:00 a.m. and 6:00 a.m. 6,1992. on June At the outset of that examination, Cochran also read defen- warnings dant Miranda and further advised defendant that representative he, Cochran, was a of the state and that no physician-patient privilege attached to the examination. acknowledged rights signed Defendant ledgment his an acknow- advice-of-rights form, which included a state- privilege During ment that no attached. both with interviews during Stoelk and also Cochran’s examination, defendant confessed that he had murdered his in-laws and made other incriminating statements. Defendant also had made some incriminating during
unsolicited statements to Stoelk police station. drive challenges
Defendant first the admission of all the spoken statements mentioned above, because he had not to a lawyer making before them. Defendant that, concedes before his interviews with Stoelk and his Cochran, examination acknowledged warnings. he had received and Miranda He “[i]n asserts, however, that, suspected situation, this a defendant iswho given a crime of this nature should be the abso right attorney prior any ques lute to talk to an to the time tioning place.” takes authority
No
exists for that contention, and it does
not merit extensive discussion here. It is clear from the rec-
complied
require-
ord that both
Stoelk
Cochran
with the
Arizona,
ments ofMiranda v.
US
86 S Ct
16 L
(1966).
reject
Ed 2d 694
We
defendant’s contention
investigation
because he was under
for a double homicide,
questioned
the state should not have
him under
circum-
spoken
lawyer.
stances until he had
with a
argues
Defendant next
that his statements
were
voluntary.
reviewing
When
the voluntariness of a defen
police
representatives
dant’s statements to
or other
findings
state, “we will not disturb the trial court’s
ofhistori
supports
cal fact if evidence
them.” State v. Stevens, 311 Or
on remand 319 Or
(1991) (Stevens I),
119, 135,
rights to the defendant to the interview. Dr. Cochran *11 present the also advised defendant that he was at the County Attorney request of the Marion District and that confidentiality subject there wouldbe no about the matter against interview, the and that of the results couldbe used freely, knowingly, him in court. The defendant tarily and volun- rights speaking waived those before with Dr. Coch- * * * ran. “** * The defendant volunteered the initial statement gun police about the administered 2 different sets of to DetectivePeterson. Thereafter the warnings the
Miranda to prior police questioning to the The defendant defendant. promises during made no threats to the defendant freely, questioning. knowingly,and The defendant volun- tarily rights agreed speak waived those with police.” reviewing record, After we conclude that the evi- supports findings. findings, dence the trial court’s Those support turn, the trial conclusion court’s that defendant’s voluntarily. reject made statements were argument We contrary. to the
Finally, argues defendant that his statements to subject physician-patient privilege. Cochran were agree findings, quoted Because we with the trial court’s reject argument. above, we also summary, argu- we conclude that defendant’s concerning suppression post-arrest ments of his state- persuasive. deny- are ments ing The court trial did not err in suppress defendant’s motion to those statements. Experts
B. Examinations Mental State’s Health Defendant next contends the trial court erred in objection overruling his to the state’s use two of mental experts health to rebut the affirmative of defense extreme (EED). chronology emotional disturbance The relevant is as psychologist, As earlier, Cochran, follows. mentioned ined defendant exam- shortly request after arrest, his at the attorney’s district office.At outset of that examination, signed a consent form stated that he was will- ing to be examined. arrest, Several months after his defen- rely upon dant filed a notice intent the affirmative insanity defenses of EED and due mental disease or defect. objection, Thereafter, over Suckow, Dr. state- psychiatrist, pursuant hired examined defendant to ORS 163.135(5).5 161.315 then his notice Defendant withdrew upon rely insanity; intent to however, the defense of he trial, continued to assert the over defen- defense EED. At objection, dant’s both testified that Cochran and Suckow respective quoted text of both statutes is below. *12 404 acting under the influence of EED when
defendant was not his crimes. he committed assignment appli- of error concerns the
Defendant’s 163.135(5).® cability statutes, of ORS 161.315 and ORS two insanity 161.315, which relates to the affirmative defense of provides, part: defect, mental disease or in due to * ** by filing [of notice the defendant intent to “Upon of insanity due to mental disease or introduce evidence of 161.309(3), in the shall have provided defect] as ORS state psychiatrist have at least one or licensed right of its selection examine the defendant. The psychologist shall file notice with the court of its intention to have state added.) (Emphasis the defendant examined.” 163.135(5), ORS EED, which relates to the affirmative defense of
provides, part: in notice intent [of introduce defendant files “After section, in the state shall provided EED] evidence of as this at one of right psychiatrist have the to have least its selec- examine the defendant in the same manner and sub- tion provided as in ORS 161.315.” ject provisions to the same added.) (Emphasis statutes, the Defendant contends under those allowing examinations in and the trial court erred testimony by both experts. two state-hired mental health Defen- allowing argues first that the trial court erred in dant already examination, because Cochran had exam- Suckow’s showing, “[t]here argues must some ined him. He also by implication, be necessary, expert than is that more one showing testimony make this before the ofthe the state must second such expert case, mental health can be admitted. In this no showing was made.” We conclude that defendant’s con- 7 tention is not well taken.6 6 statutes, quote of which has been the 1995 version of both neither We exception of the since defendant committed his crimes in 1992. With
amended selected, expert parts are the type health the relevant of both statutes of mental same. 7 163.135(5) discuss the examination of We note that both ORS 161.315 and defendant, opposed testimony expert relating to that as to the health the mental party explicitly relate examination. Neither raises the issue whether the statutes essentially testimony Suckow, makes although of Cochran and argument contending testimony improper. We need Suckow’s was construing statute, this task is to
When court’s dis legislature. 174.020; the intent ORS PGE v. cern Industries, 317 Or Bureau Labor P2d (1993). analysis, first In our level of we examine text at PGE, and context of the statutes at issue. 610-11. begin pro- statutes, with the which We text *13 legislature’s vides the best evidence of the intent. See id. at (stating principle). upon wording the Defendant focuses right [men- “the have to that state shall the have at least one * * * expert] (emphasis health the tal examine defendant” added) argues wording suggests that that that and the state may defendant, conduct one examination of a such as any Cochran’s examination, but that additional examina- require tions, Suckow’s, such as a demonstration that more necessary. than one examination is disagree We that the text of ORS 161.315 and 163.135(5) supports reading defendant’s ofthose statutes. To contrary, wording clearly grants the “at one” least opportunity state to examine a defendant more than rely once, after that defendant has filed a notice of intent to upon insanity either or EED. Moreover, the do statutes not speak to examinations conducted a defendant files before suggesting a notice, such Cochran’s an that examination such as fall
does not under either statute. * * * wording right The “the shall state have the to added) (emphasis examine the defendant” instructive, also is wording suggests unequiv- that that the an because state has opportunity to ocal examine a defendant has who filed a rely upon insanity regard- to of intent either EED, notice or willingness cooperate. less to Stated despite way, objection being another to exam- 163.135(5) ined, ORS 161.315 and to allow the state conduct at least one examination the defendant filed has such a if notice.
We conclude that the text of ORS 161.315 and 163.135(5), right” “the state shall have the to conduct “at least one” examination of a who filed a has notice any event, only address issue in because conclude that examina- we Suckow’s governed by tion was the statutes. rely insanity only upon EED, either concerns of intent to examinations conducted the defendant nonconsensual after pre- words, In other the statutes files such a notice. do not consensual examinations conducted before a defendant clude rely upon a notice of intent to certain affirmative files simply provide the but, rather, defenses serve state with unequivocal right to examine a defendant who has filed an Nothing in the either statute such a notice. context of com- pels a conclusion. different exami case,
In this Cochran conducted consensual before defendant filed his notice ofintent nation of defendant insanity Consequently, rely upon EED. purview of either Cochran’s examination was within 163.135(5). only Rather, Suckow’s examina ORS 161.315 or statutory subject requirements. under Because, tion is right the state “shall have the to have at least statutes, both psychiatrist” examine the defendant after a notice is one testimony proper. were filed, Suckow’sexamination Admissibility State’s Exhibits C. *14 assigns to the trial court’s
Defendant next error by objection overruling to certain exhibits offered of his during defendant’s wife. The its redirect examination of state sequence at trial was as follows. On cross-exami- of events (1) had wife testified that: defendant nation, defendant’s marriage his certificate so that wife and created a false daughter that not affect could receive welfare benefits would (2) during governmental before the assistance; week his daughter; let their and she did not defendant visit murders, (3) planned their to allow defendant to visit she had not During daughter left defendant. its redirect exami- after she attempted wife, the state to introduce nation of defendant’s forgery-connected specifically, several exhibits, certain objection response exhibits, defendant’s to those items.8 In to they necessary to show that the state contended that were visitation, was afraid to allow defendant defendant’s wife 8 following items consisted of a briefcase that contained the The state’s exhibits cards; cards; Army security police and belonging identification to defendant: social discharge paperwork; and mar identification cards and honorable armed forces riage and birth certificates.
407 changed easily identity disap- could he have his and because daughter. peared with their trial court allowed the state exhibits, to introduce the and defendant’s then testified wife might changed her that defendant about fears have his iden- daughter away. tity taken their objected At trial, defendant to the introduction ofthe arguing they prejudicial exhibits, that state’s “would be stage game.”9 this However, the Defendant at in this argues court, defendant now that the were inadmis- exhibits (1) they 401, sible because: under OEC were irrelevant to the (2) guilt; 404(3), they issue under OEC consti- “prior acts”; tuted inadmissible evidence of bad (3) they unfairly prejudicial under 403, and, OEC were prevented receiving therefore, from a fair trial principles process. due under applicability We do not address the of OEC 401
404(3) to the
exhibits,
state’s
because defendant did not
argue
precluded
at trial that either rule
their admission. See
(1992) (Isom II)
v.
Or
Isom,
391, 406,
State
313
OEC 403 relevant, may probative be excluded evidence if its is value substan outweighed tially danger prejudice.” of unfair The rel inquiry evant is not whether evidence introduced over one objection prejudicial party’s party, was but whether unfairly prejudicial. Lyons, evidence was State v. (1996). 256, 280, P2d the context of OEC prejudice” tendency suggest means “unfair “an undue deci *15 improper commonly although always on an basis, sions not argued scope Defendant also at trial that the exhibits exceeded the of defen argument of his dant’s cross-examination wife. Defendant does not raise that court, and, accordingly, this before we do not address it. Legislative Commentary, in an emotional one.” cited Laird C. (2d 1989).
Kirkpatrick,
ed
Evidence,
Oregon
We conclude
the state’s exhibits were not
unfairly prejudicial
charged
to defendant. Defendant was
burglary
murders,
violent
in
with two
addition to
and kid
very
danger
napping.
view,
In our
there was
little
that the
may
suggesting
forged
evidence
defendant
have
certain
jury improperly
would have influenced the
in its
documents
guilt
of defendant’s
or innocence. See State v.
determination
(1990) (finding
523, 555-56,
D. Cumulative Evidence assigns
Defendant also error to the trial court’s over- ruling objection testimony during of his to certain the state’s Specifically, objects examination of Stoelk. direct following testimony: [by During your prosecutor] “Q interviews with * * * the Defendant at times did he becomeemotional or cry? [by yes. Stoelk] Somewhat,
“A crying stop? “Q fast wouldthe start and How % * * * and on. When he on, “A It was much pretty off off description emotional, it about was like begin get would family. relationships Then it would
the times—about with immediatelystop and that was it. right again
“Q Andbe all or calm? recoup Kleen[e]x Right, “A no need for or time to added.) anything.”(Emphasis *16 argues emphasized testimony Defendant tape- inadmissible, was because it was cumulative of a recorded interview between Stoelk and defendant, which the played jury just state had for the before Stoelk testified. We disagree.10 “ provides, part, [although
OEC 403 relevant, may probative evidence be excluded if its value is substan * * * * * * tially outweighed considerations of needless presentation of cumulative evidence.” In context, this requires two-step inquiry: rule Whether the evidence at probative and, so, issue is cumulative if whether its value is substantially outweighed by considerations ofits cumulative nature. testimony
We conclude that Stoelk’s was not cumu already jury consequently, lative of evidence before the and, inquiry unnecessary. that further under OEC 403 is As dis opinion, cussed earlier in this Stoelk conducted two inter place shortly views with defendant. The first took before mid night 5, 1992, on June at the home of defendant’s mother immediately following defendant’s arrest. The second took place just midnight police after on June 6, 1992, at the sta tion. Defendant also made several comments to Stoelk while being transported police Only to the station. the interview at police recording station was recorded, and it was that played jury. that the state for the prosecutor
As noted above, asked if, Stoelk dur- ing his interviews with defendant, defendant became emo- question tional or cried at time. That related to all only tape Stoelk’s conversations defendant, with not to the testimony recorded Moreover, interview. Stoelk’s added to tape-recorded gave the substance of the the interview, because it jury description during of defendant’s demeanor jury may necessarily interviews, which the have ascer- listening recording. Consequently, tained from Stoelk’s testimony tape-recorded was not cumulative ofthe interview, allowing and the trial court did not abuse its discretion in testimony. upon testimony Defendant also contends review that Stoelk’s violated OEC admissibility lay opinion testimony. However, which concerns the defen argument and, preserved consequently, dant’s was not we do not address it. E. Motion For Continuance next
Defendant contends that trial court erred in 30-day denying pro motion for a continuance, his se which made near the end of his case-in-chief.11The col- loquy and the between defendant court was as follows: Honor, I right up
“[DEFENDANT]: Your can tell front going way charges this Court is the same did I filed against my [defendant’s sister mother-in-law]. Nowhere. called, And I have 20 witnesses to got be two of them are in I Michigan. enough get And don’t have time to them out here before side of the case they go it, this is relaxed and *17 * * * they you find either or I guilty guilty. not need more 30-day time. I want a extension on this.
“THE COURT: I can’t afford to do that. This time has been months, scheduled for this block of time for not weeks but just and it can’t be done. very people important
“[DEFENDANT]: These are to me. fact, bringing my In one kid I’m out here is one that sister did hire to kill me in of what he spite testifies. Motion
“THE COURT:
is denied.”
Granting
denying a
motion for continuance is
discretion,
the trial court’s
and this court will disturb
within
only
ruling
if the trial
such a
court abused its discretion.
(1993).
Parker,
225, 231,
State v.
For did not abuse its discretion in defendant’s denying court First, for a continuance. defendant stated neither motion had nor sought any witnesses, that he production the court could those witnesses to attend the require trial. defendant failed meet OtterCs first Consequently, Second, as to OtterCs other defen requirement. requirement, dant claimed the 20 witnesses only “very were impor tant” and that one witness was involved in an earlier plot mother-in-law have defendant murdered. Defendant did not demonstrate whether 19 of the witnesses about material facts. testify Moreover, would as to the defendant asserted him, witness who was hired to kill defen dant did demonstrate that witness would testify material fact. Rather, about a defendant stated his own belief about a murder “in plot, spite [the what testifies.” witness] short, defendant did not meet either of the requirements in Otten. set forth Consequently, holding counsel, same standard as we would defense we hold that the trial court did not abuse its discretion in denying motion. Jury
F. Instructions Requested Relating Lesser-Included Offense
Defendant also error to the assigns trial court’s jury denial of his instructions that requested explained affirmative EED, defense of if proved by preponderance evidence, would have a effect mitigating upon murder in the aggravated alleged indictment. charges Defendant contends review that the trial court should upon have submitted his instructions with to the requested respect 163.095(l)(d) two murder under ORS charges aggravated more than one victim in the same criminal (murdering epis ode).12 EED, He as set forth in ORS essentially argues 163.135(1), an affirmative defense to the crimes of provides give describing mitigating The trial court did an effect of instruction 163.115(l)(a). charges upon EED the two of intentional murder under ORS aggravated
both
jury
murder and
murder and that
disagree.
should have been so instructed. We
163.135(1)provides,
part:
ORS
“It is an affirmative defense to murder
purposes
for
163.115(l)(a)
ORS
[intentional murder] that the homicide
was committed under the influence of extreme emotional
disturbance when such disturbance is not the result of the
person’s
intentional,
own
knowing,
criminally
reckless or
negligent act, and for which disturbance there is a reason-
* **
able explanation.
Extreme emotional disturbance does
not constitute a
prosecution
to a
for, or preclude a
defense
conviction of, manslaughter
in the first degree
other
added.)
crime.” (Emphasis
163.135(1)
meaning
of ORS
is clear from its text
According
and context.
text,
to its
EED is an affirmative
only
defense
by
murder,
crime of
as that crime is defined
163.115(l)(a),
ORS
is,
criminal homicide committed
intentionally.
by
apply
felony
EED does not
murder, defined
163.115(l)(b),
by
by
ORS
or murder
abuse, defined ORS
163.115(l)(c).
wording
Likewise, under
of ORS
163.135(1),
apply
“any
it also does not
other crime.” Con-
sequently,
aggravated
EED is not an affirmative defense to
163.095(l)(d).
murder under ORS
163.135(1)
interpreting
supports
Prior case law
ORS
purpose
pre-
our conclusion. For the
statute,
ofthat
this court
viously
aggravated felony
by
has held that
murder, defined
163.095(2)(d),
ORS
is a
crime from intentional mur-
different
163.115(l)(a).
der, defined ORS
Wille,
State v.
Or
(1993).
argues
492,
We murder, what form, ever its is a different crime from intentional as murder, 163.115(l)(a). by Accordingly, defined ORS under the clear 163.135(1), text of ORS EED is not an affirmative defense to aggravated murder. supports A related statute further our conclusion. 163.115(1) provides, part:
ORS “[C]riminalhomicideconstitutes murder: “(a) intentionally, When it is committed exceptthat it is an the tional homicide, at the time affirmative defense was under the an extreme emo- influence of added.) disturbance[.]”(Emphasis 163.115(l)(a) clearly may ORS states that EED serve as an affirmative defense to the crime of intentional murder. The aggravated murder statute, ORS 163.095, contains no such description legislature clearly of EED. In short, the has stated that it intended EED to serve as an affirmative defense ORS only to the crime ofintentional murder, as defined 163.115(l)(a). arguments contrary Defendant’s to the persuasive. are not Having rejected assignments all defendant’s of error
relating guilt phase to the of his trial, we affirm all seven assign- convictions. We now turn to defendant’s relating penalty phase ments of error ofhis trial.
III. PENALTY PHASE A. Admissibility 163.150(l)(b) Evidence Under ORS assigns
Defendant first error to the trial court’s denial of penalty-phase his motion to limit the state’s evi- only directly dence to evidence that was relevant to the first 163.150(l)(b). statutory questions three set forth in ORS He argues penalty-phase that some of the state’s evidence was questions not relevant to the consequently, first three and, should not have been admitted. Defendant asserts that the 163.150(1) admission of that evidence violated ORS and his right process to due under the Fifth and Fourteenth Amend- ments to the United States Constitution. We consider defen- statutory argument considering dant’s before his constitu- *20 argument. tional See State v. Guzek, 322 Or 250, 906 (1995) (GuzekII) (so stating). 272 P2d
At the time of defendant’s crimes in June of 1992, 163.150(l)(b) provided: and ofhis trial in ORS “Upon presentation the conclusionof the of the evi- following dence, the court shall submit the issues to the jury:
“(A) Whether the conductofthe defendantthat caused deliberately the death of the deceasedwas committed and expectation with the reasonable that death ofthe deceased result; or another would
“(B) probability Whether there is a that the defendant would commit criminal acts of violencethat would consti- continuing society; tute a threat to “(C) evidence, If raised the whether the conductof killing the defendant in response the deceasedwas unreasonable in any, by provocation, if deceased; the
“(D) Whether the defendant should receive a death sentence.” question permits view, the fourth
only
mitigating
consequently,
the admission
and,
of
evidence
aggravating
the trial court erred
it
when
admitted certain
questions.
evidence that was not relevant to the first three
question permits
The state contends that
the fourth
the
aggravating
alternatively,
introduction of
evidence and,
con-
only mitigating
tends
even if
evidence is admissible
question,
the
under
fourth
the evidence at issue
admis-
was
question.
agree
under the
sible
second
Because we
with the
ques-
state that the evidence was relevant under the second
concerning
tion, we do not address defendant’s contention
question.13
fourth
(1995) (Guzek
Guzek,
245, 263,
II),
In State v.
322 Or
held the 1989 version ORS allowed the introduction case, however, mitigating holding controlling evidence. That is not in this because 163.150(l)(b)(D), prosecuted defendant was under the 1991 version of ORS which significantly question contained a fourth than of that different the 1989 version statute. 163.150(l)(b)(B) requires jury- noted, ORS a
As prob “[w]hether death-penalty a case determine there is a in ability that the defendant would commit criminal acts of vio continuing society.” lence that would constitute threat commonly question, danger referred to as the That “future question, pro relevant ousness” makes evidence is likely engage danger in bative of whether defendant is ous, 45, 76, Moen, criminal conduct in future. State See v. (1990) (applying principle). 786 P2d challenges types
Defendant the admission of two evidence that state now contends was relevant jury’s dangerousness. determination of future Some of that teenage girls, evidence concerned defendant’s attraction to remaining evidence concerned his belief white supremacy. type We address of each relevance evi- dence in turn. concerning parts.
The evidence defendant’s attraction to *21 teenage girls had two First, the state introduced evi marriage that, dence before his to his wife, then-current sexually teenage girls, defendant had been one of whom became defendant’s involved with two
pregnant. The record discloses that relationships girls signifi with both involved part. of cant amount violent on conduct defendant’s Such vio jury’s lent conduct is relevant to the determination whether dangerous be and, defendant would in the future conse quently, question. is admissible under the second See Wil (stating goes “[e]vidence I, at 43 liams 313 Or that to the question probable [a] of defendant’s future violent behavior is * ** dangerousness”). [to] relevant the issue of future testimony
Second, the state elicited
from defendant’s
neighbor concerning
former
desire
defendant’s
to have sexual
teenage girls.
neighbor
relations with
Defendant’s
testified
occasions,
on two
made
had
comments to him
graphically
young
a sexual nature in reference to two
teen
age girls.
argues
neighbor’s testimony
Defendant
that the
* * *
[not]
relevant,
was not
“the
were
because
incidents
accompanied
by any
act violence,
action whatso
going
ever. The comments were indicative of what was
on in
ugly
defendant’s brain at the time. The comments were
they
distasteful, but
were not violent.”
disagree
rel-
assessment of the
with defendant’s
We
testimony.
neighbor’s
court
I,
this
Williams
evance of
like
statements that “he would
that a defendant’s
concluded
thought
something
‘girl,’
rape
it
that he had
that was
to
about,
thrilling
thought
do it,”
that it would be
and that he
question.
The court
second
There
a limit,
is
however,
upon
broad range of
163.150(l)(b)(B).
evidence that
is admissible under ORS
Because the standard of relevance set forth in OEC 401
applies
penalty-phase
Guzek
proceedings,
II,
During penalty phase of trial, state introduced extensive evidence that generally concerned defendant’s belief in white That supremacy. evidence, of which admissibility challenges upon review, (1) included: testimony that neo-Nazi propaganda was found (2) home; in defendant’s evidence that, on several different occasions, defendant had disseminated neo-Nazi and anti Semitic literature propaganda members of his family (3) and to the public; introduction of a photograph showed defendant giving “[S]ieg heil,” or “Heil Hitler,” (4) salute; testimony that defendant did not like people (5) African descent, Hispanics, Jews; testimony that defen dant commonly referred to of African descent people as “nig and also had gers” referred to an African-American correc tions officer as a “Kaffir,” which is a term disparaging (6) sometimes used toward black South African citizens; tes timony that defendant believed that world should be “[o]ur all white” and that people descent, African Hispanics,
418 (7) testimony supposed die”; and about addi- Jews “were defendant’s violent that demonstrated tional statements testimony minority groups, including that hatred toward “killing people.” in black defendant believed evidence described in the asserts that the Defendant merely paragraph preceding and was indicative of his beliefs dangerousness. agree probative his future We with was not standing evidence that a defendant that, alone, defendant superior others, to all or that defen believes that one race is people disparaging language to refer to of other dant uses races, question. generally the second A is irrelevant under expression beliefs, here, such as those made mere does of one’s itself, indicate that the holder of those
not, in and of dangerous of such an be in the future. Words beliefs will general related nature, and in the absence of abstract an indicator of a defendant’s future conduct, cannot serve as person may similar to Indeed, a hold beliefs behavior.14 yet upon those beliefs in a manner and never'act defendant’s person’s capacity for future of that that is demonstrative dangerousness. the state also introduced evi- case, however,
In this
engaged
conduct, related to his
had
in
dence that defendant
may
supremacy, that
that he
be
demonstrated
belief in white
during
guilt phase,
dangerous
defen-
First,
in the future.
high
1950s,
in
school in the
that,
testified
when
dant’s wife
defendant often
fought
minority
specifically
students,
with
people
Hispanic[s]
“Japanese
Second,
and
and blacks.”
dur-
phase,
ing
penalty
in
the state introduced evidence
P2d 364
gerousness.
828 P2d
determination
relevant
dant
610-11,
(a
orating
loser,’
that a defendant had made toward various
question).
dant’s confessions
132, 174-75, 786 P2d
[14]
“may
We
”
which was
evidence,
1006,
(1996) (a
to the second
do not mean to
act
P2d 1352
Certainly,
violently
In our when considered in context with that evidence conduct, of defendant’s violent and criminal the evi- concerning relating dence defendant’s to the basis beliefs for question, that conduct becomes relevant under the second because it demonstrates defendant that has continued to engage dangerous the hold racist that him to in beliefs drove past. conduct in The the evidence at issue also demonstrates depth the which with defendant has continued to hold those follows, It therefore, beliefs. beliefs here that the of evidence propensity to
relates the extent of his to act dan- gerously considering sum, in the future. In after belief all the evi- concerning supremacy, dence in white together his conduct, with evidence of related we hold admitting that the trial did in court not err that evidence, probative dangerousness it because was ofdefendant’s future 163.150(l)(b)(B). under ORS upon
Defendant also contends that the admis review sion of the evidence in described this section violated his right process to due under the Fifth and Fourteenth Amend ments to the United States Constitution. A of the rec review object ord, however, discloses that defendant did not to of process upon grounds. the evidence at issue due Conse quently, argument preserved his constitutional is not and we do address it. Admissibility Concerning
B. Evidence of Defendant’s Beliefs Under the First Amendment to the United States Constitution next court’s
Defendant
asserts
the trial
admis-
concerning
supremacy
sion of the evidence
his belief in white
right
speech
violated
to free
his
free association under
First Amendment to the
United States Constitution.15 In
provides,
part,
“Congress
The First Amendment
in
shall make no law
***
* *
*
*;
speech
abridging
right
people peaceably
of
the freedom
to
contending,
refers
all the evidence described
to
so
opinion,
exception of the evi-
this
with the
II.A. of
in section
concerning
his violent and criminal conduct related
dence
(discussing
at
Or at 417-18
the evidence
See 324
his beliefs.
issue).
upon
Delaware, 503 US
relies
Dawson v.
Defendant
(1992),
support
his
degree and his victim were murder. Both the defendant prosecution gave penalty phase began, the Before the white. testify expert intended to call an witness that it notice organization origin called the nature of an about prosecution Aryan intended to intro- also Brotherhood. “Aryan had the words the defendant evidence duce on hand and had a number tattooed his Brotherhood” that the defendant back, on his and also tattooed swastikas prison painted US of his cell. 503 a swastika on the wall had testimony preclude In order to 161-62, 166. at state’s agreed expert, that tes- that, in lieu of the defendant *25 following stipula- timony, prosecution the could submit the jury: tion to the
“ prison a white racist refers to Aryan ‘The Brotherhood in to response 1960’s in California in the began that gang calling Separate gangs minorities. of racial gangs other many now exist in state Aryan Brotherhood the themselves ” 162.16 Id. at including Delaware.’ prisons prosecution phase, During penalty the the read the jury the introduced evidence of stipulation and also to the through the Due applicable to the states is made First Amendment assemble.” Sullivan, Times Co. v. Amendment. New York the Fourteenth Process Clause (1964). 710, 11L 4, 2d Ct Ed 686 264 n 84 S US 376 issue violated his First that the evidence at asserts in his brief also Defendant freedom,” Defendant “religious further elaboration. right without Amendment and, pre- consequently, did not argument before the trial court that did not make argument for review. serve that agreement to the Dawson, that, despite the defendant’s the Court noted In stipulated of the trial court’s admission to assert that the stipulation, he continued 162. 503 US at States Constitution. the United facts violated “Aryan However, tattoo. the trial defendant’s Brotherhood” prosecution’s court all the swastika evidence. The excluded prosecution introduced no other evidence that linked the any Aryan membership Brotherhood conduct part specific on the or the that demonstrated Aryan prison beliefs of the Delaware branch of the Brother- penalty hood. Id. at 165-67. At the conclusion phase, jury penalty the recommended the death and the trial imposed Supreme court it. The Delaware Court affirmed. Id. at 163. Supreme
The United States Court vacated and ruling Supreme holding reversed the Court, the Delaware “[the defendant] rights ’sFirst Amendment were violated * * Aryan the admission of the Brotherhood evidence *, proved nothing [the because the evidence more than defen- dant]^ abstract beliefs.” Id. at 167. Defendant claims that indistinguishable Supreme this case is ing from the Court’s hold- requiring in Dawson, a reversal ofhis death sentence. We disagree. Supreme specifically Court Dawson, framed
the issue it before as “whether First and Fourteenth prohibit capital Amendments the introduction in a sentenc- ing proceeding theof fact that the defendant was a member of organization Aryan an called the Brotherhood, where the evi- dence has no relevance to the issues decided in the being pro- added). (emphasis Throughout opin- at Id. its ceeding.” emphasized Aryan ion, the Court Brotherhood any evidence, standing alone, was not relevant other issue jury. before the The Court stated: group [the defendant] “Even if the Delaware to which belongs
allegedly racist, beliefs, is those as so far we can sentencing proceeding determine, had no relevanceto this case. For example, Aryan Brotherhood evidence any way was not tied in murder Dawson’svictim. prosecution Aryan prove “Becausethe did acts, Brotherhoodhad committed unlawful orviolent *26 Aryan acts, had even such the endorsed Brotherhood evi- help prove any aggravating dence circumstance. not was also relevant to cases, many example, evi- associational for a legitimate purpose showing dence in that a might serve represents danger society. A defen- defendant future membership organization dant’s in an that endorses the killing any group, example,might identifiable for be rel- jury’sinquiry evant to a into whether the defendant willbe * * * dangerous in the future. But the inference the which jury prove was invited to in draw this case tended to noth- ing chapter more than the abstract beliefsofthe Delaware added). Aryan [of Brotherhood].” (emphasis the Id. at 166 prosecution that, Court concluded because the intro- membership duced no evidence that made the defendant’s in Aryan “pre- the Brotherhood relevant, the First Amendment * * * vented] employing Delaware from evidence of a defen- sentencing hearing dant’s abstract beliefs at a when those hafd] bearing being no on the issue tried.” Id. at 168 beliefs (emphasis added). above-quoted passages
As is clear from the from death-penalty proceeding the in Dawson, admission of evi supremacy dence that concerns a defendant’s belief in white does not violate the First Amendment evidence is rel ¿/such jury. evant to dant determination of an issue before the Defen argues nothing because his had beliefs to do with the murders of his in-laws, white, who were evidence con cerning during penalty those beliefs was not relevant phase argument of his trial. That is incorrect under because, admissibility type Dawson, of evidence at issue merely here is limited to its relevance to a guilt. may Rather, the evidence also be admissible if it is rel help prove aggravating evant “to circumstance.” Id. at 166. penalty phase “[a] has stated before,
As this court
required
jury
prior
to ‘convict’a
is not
defendant of
crimes.
by
jury
answering
questions
Rather,
must decide
required
particular
ORS 163.150 whether a
or should not receive a death sentence.”
v.
should
State Mon
(1990) (Montez I),
564, 611,
Or
tez, P2d 1352
on
(1996).
remand
The situation before us In that case, than the Court in Dawson. that before Supreme the the abstract evidence concerning introduced prosecution to issue before Brotherhood that was not relevant Aryan any the In in this the state evi- jury. contrast, case, presented that dence of defendant’s beliefs and related conduct specific was of his future probative dangerousness. Consequently, Dawson, under the trial court’s admission of the evidence at issue here did not violate defendant’s First Amendment rights. Evidentiary C. Motions and Mistrial Based Hearing Upon for Juror Misconduct
Alleged Defendant’s next of error concerns alle- assignment misconduct, which arose from the fact that gations juror inmate, one had a son who an housed in a cell near juror was cell at the County Facility, Marion Corrections The of defendant’s trial. record discloses the fol- during parts of events. Four into the lowing sequence days penalty phase, defendant’s counsel to the trial reported court according defendant, juror to the had been defendant’s case discussing her son on a basis. At the close of on regular testimony with the court the day, juror, same who confirmed questioned that her son was an inmate at the Marion Correc- County the Facility. tions court’s whether response question there for defendant’s the allegations, juror was basis responded:
“Absolutely juror’s [the son] not. He called me on the then, I phone, and have not talked to him since and he Well, said, just I talking as was to him I I’ve been stated — really really busy jury duty and I’m And I on now. knew minute I said that I shouldn’t it. And he immedi- have said me if ately asked I—if it was this case. And I did particular said, no, lie to him. I name does not sound familiar me.” told the
The court that had taken juror that conversation several weeks place before, near the of defendant’s beginning trial. The court then stated: right.
“All The is Court satisfied there’s no conduct your on that would part interfere with instructions I’ve given you in that regard.”17 days later,
Ten defendant’s counsel told the trial reported jury court that a second inmate had that, before began deliberating guilt juror phase, after the the same had guilty going told her son that defendant was and was through receive a death determined, sentence. court first questioning juror allegedly counsel, that had questioned made those statements before court had juror improper about communications with her son. The court then stated: *28 right. juror]
“All With I’m not going [the to ask to testify again accepted come in here and I because have her already credible, testimony absolutely as certainly and I’m repeat record, not to ask her And going that. for the I do testimony juror find being the of under oath as not put the by by down statements not under oath not only made before, juror’s the we person son, referred was that who prisoner Defendant, but also a third and the who for these credibility have purposes no for the Court.” proof, Defendant’s counsel moved to make an offer of which the court denied. day, next
The defendant’s counsel submitted a let- prepared investigator, ter, defendant’s that detailed the by the incidents described second inmate. The trial court purpose letter the received that for defendant’s offer of proof. following day, The defendant’s counsel filed motion evidentiary hearing accompanied by for an issue, on the his essentially own affidavit. affidavit summarized the sec- allegations ond inmate’s and also stated that defendant’s only possible juror] [d] [was] [the counsel it “believe not feelings [her son] could have communicated to her about the may [her son] case, but that have communicated to his * * * mother his ities in the Marion of the Defendant and his activ- observations County Jail.” gave question juror, although Defendant’s counsel the court him did not the opportunity the to do so.
Finally, penalty during deliberations after the believing phase, that the trial court had counsel, fully juror moved for an misconduct, decided the issue of evidentiary hearing. that motion, After the court denied also mistrial, counsel moved for a which court denied. assigns aspects
Defendant error to two of the trial court’s actions. Defendant first contends that the court erred “fail[ed] it because allow defendant to make an offer of proof’ concerning alleged juror misconduct. In defen- view, dant’s the court should have allowed defendant to offer testimony juror’s defendant, son, and the second inmate. disagree that the trial court denied defendant an
We
opportunity
proof. Although
to make a sufficient offer of
correctly
making
asserts that one method of
an
proof
through
testimony, by question
is
offer
witness
and
* * *
“[i]t
acceptable
party’s
also is
answer,
for a
counsel to
proposed
expected
state what
evidence is
to be.” State v.
(1992).
Phillips,
840 P2d
case,
In this
accepted
investigator,
the trial court
the letter of defendant’s
which summarized an
inmate,
interview with the second
arguments
spec
counsel,
also heard the
of defendant’s
which
alleged
ified the substance of the
communications between
juror
her
son. The court also had before it the affida
of defendant’s counsel that reiterated the
vit
second inmate’s
allegations.
together,
Taken
we conclude that the trial court
*29
had
information to make its
sufficient
determination con
cerning
alleged
misconduct and that defendant offered
complete
purposes
information to
the record
sufficient
for
proof
“the
words,
review. In other
offer of
was sufficient to
sought
the content of the evidence
to
demonstrate
be admit
Phillips,
ted.”
Next, defendant contends that the court erred alternatively, denying or, his motion for a mistrial refusing evidentiary hearing on the court erred in to hold an deny juror grant issue of misconduct. decision motion for a mistrial “is addressed to the sound discretion judge, position and to rec the trial who is in the best to assess tify potential prejudice Pratt, v. to the defendant.” State (1993)
similar
on the trial
we also
review that decision for an abuse of discretion. See State v.
(1996)
Wright,
(reviewing
We with defendant the trial court denying abused its discretion in defendant’s motions. After learning alleged juror communications between the immediately questioned juror son, and her the court satisfied itself that no misconduct had occurred. When defen brought dant’s counsel the matter to the court’s attention a specifically time, second the court stated that it had found the juror’s testimony question to be credible and saw no need to juror any further. cases,
In similar
this court has deferred to trial court
prejudice
determinations of the extent of misconduct or
to a
juror
defendant and also to trial court assessments of
credi
(no
bility.
e.g.,
See,
II,
Pratt
D. Instructions for Defendant assignment
Defendant’s next of error concerns the give requested jury trial court’s refusal to four of defendant’s
427
juror
pertained
sympathy toward
instructions, all ofwhich
to
give
refusal
a
We review a trial court’s
defendant.
jury
requested
a
instruction for error as matter of law. State
(1990).
347, 355,
However,
v.
310 Or
for defendant based
evidence, as set
163.150(l)(c)(B).18
forth in ORS
Because the court so
jury,
instructed the
we conclude that it neither erred nor
refusing
give
its
abused
discretion in
requested instruction. See State v. Tucker,
321, 332,
(1993) (stating
“[i]t
by feelings mercy sympathy or toward defen feelings upon any mitigat dant, even if those were not based ing requested evidence. Defendant contends that the instruc properly explained sympathy tions for defendant is phase. appropriate penalty an consideration in the The state argues that, under Or in which this court Moen, approved a/zii-sympathy instruction, an 163.150(l)(c)(B) provides: ORS determining question], the court shall [under “In the issue the fourth jurors jury find question
instruct of the answer the ‘no’if one or more any aspect background, circum- there is defendant’s character or offense, justify jurors a sen- stances that one or believe would more of tence less than death.” requested improper. agree were instructions We with the state. approved jury this court Moen, instruction that *31 jurors part, any
stated, in that the were “not to allow bias, any sympathy, prejudice place [their] or in deliberations.” finding proper, Or at 93. that instruction to be this specifically permissible court penalty-phase discussed whether it was for a appeal generally jurors’
instruction to to the sympathy and concluded that such an instruction would be impermissible. doing Id. at 91-93. In so, the court stated that “general sympathy, any place or emotionalism, has no in a capital sentencing just place decision, as it has no in the jury’s during guilt phase.”Id. deliberations the at 92. Rather, any appeals jurors’ sympathies instruction that also jurors sympathy must instruct the upon mitigating that such must be based evidence before them. Id. at 93. Although anti-sympathy Moen concerned an reasoning applicable Consequently, instruction, its is here. properly we that, conclude as a matter of law, trial court give requested refused to instructions. Requested Jury Relating E. Instruction to the Ultimate Issue assigns
Defendant also error to the trial court’s give requested concerning refusal to his instruction the “ulti mate issue” of whether defendant should receive the death penalty. requested instruction was as follows: Oregon penalty you jurors
“Underthe law, death make [defendant] the ultimate decision toas whether will live or your part deciding question!], you die. As in role this appropriateness pun- must make a decisionaboutthe ofthe ishment of death in this case. That means that in addition deciding just questions the answer to the four I have read you,you appro- to priate must also decide whether or not death is you [defendant’s in Therefore, case. I instruct you may question[s] good answer the four ‘no’ conscience you question ‘yes,’ if feel that the answer to the is but the you personal circumstancesofthis caselead to a beliefthat appropriate [defendant].” death is not the sentencefor Although give the trial court it instruction, did not did jury questions instruct the that it must three answer first 163.150(l)(b) “yes” ORS if the state met its burden of under jury proof questions that, if the on those also answered question affirmative, the fourth in the “the sentence will be jury The court also instructed the if it that, death.” answered questions, the four “no”to sentence would be either imprisonment possibility parole impris- life without the 30-year onment with a minimum term. disagree
We
with defendant
the trial court
refusing
give
requested
erred in
his
Tucker,
instruction. In
rejected
assignment
this court
a similar
of error
concerning requested
jury’s
instruction that related
“
[the]
‘ultimate decision’ whether
defendant would live or
following reasoning
die.”
“The trial court instructed the if it answered questions affirmative, in the requires ‘the law that the added) penalty shall be death’ (emphasis if it *32 [any answered or questions all] of the in negative, ‘the requires penalty law that the shall be life imprisonment.’ Those instructions accurately conveyed jury to the its role in determining [the] defendant’s sentence. That was * * * enough. The trial court did not err in refusing give to requested jury defendant’s instructions concerning the jury’s determining role in sentence.” Ibid. omitted). in (emphasis original; citations
We hold that the trial court neither erred nor abused refusing give requested its discretion in to instruction. Constitutionality Oregon’s Penalty F. Death Statutes of
Finally, defendant contends that the trial court overruling erred in his demurrer indictment, which challenged constitutionality Oregon’s penalty of death upon grounds. only statutes several different We address one arguments concerning here, of constitutional judicial post-verdict jury’s impose review of the decision to penalty.19 the death 19 remaining challenges, As to defendant’s constitutional defendant concedes rejected challenges
that this court has similar in other cases. We adhere to those rulings and, prior bar, because further discussion would benefit neither bench nor arguments. to discuss decline defendant’s other 430 Oregon’s penalty view,
In defendant’s death statutes meaningful judicial jury’s do not allow for of a review decision impose penalty. specifically upon the death He focuses question fourth the defendant should receive a “[w]hether — question death sentence”—and contends because that “merely jury’s opinion,” asks the neither the trial nor the jury’s appellate court is able to review a determination under question. Defendant contends further that such a lack of judicial opportunity for review violates Due Process Clause of the Fourteenth Amendment United States explain, shall Constitution.20As we because we conclude that judicial jury’s review of determination under the fourth question reject available, is we defendant’s constitutional argument.21 begin by discussing post-verdict
We the nature of judicial generally review available in criminal cases. In addi type through appeal tion to the post-conviction of review available direct or a proceeding, may,
relief a criminal defendant through judgment acquittal, request judicial a motion for a of guilty review of a verdict in order to determine whether suf supported Stroup, ficient evidence that verdict. See State v. (1980) (rejecting 204-05, 620 P2d a defen challenge dant’s insufficient-evidence dant’s motion for because the defen judgment acquittal upon was based other grounds). cases, In criminal provides: The Due Process Clause of the Fourteenth Amendment “No State ** * deprive any person life, liberty, property, process shall without due law.” argument appears partially rely upon Defendant’s also Article VII (Amended), Oregon provision provides, part: section Constitution. That * * * law, by jury
“In actions at
no fact tried
shall be otherwise re-examined in
*33
state,
affirmatively say
court of this
unless the court can
there is no evidence to
support the verdict.”
115, 167-69,
(1988),
Wagner,
v.
305 Or
P2d 1136
State
752
vacated and
(1989)
914,
3235,
grounds
remanded on
492
Ct
L Ed 2d
other
US
109 S
583
I),
5,
93,
(1990),
(Wagner
on remand 309 Or
786 P2d
cert den
future, or acted
the victim. The
juror”
appli-
issue
is
the
here whether
“rational
standard is
question,
cable to the fourth
which, unlike the first three
questions,
subject
proof.
is not
to a burden of
See ORS
163.150(l)(d) (setting
proof requirements
forth the burden of
questions);
(noting
for the first three
Guzek II,
We first
that the fourth
does not
carry
proof,
present
a burden of
“because it does not
an issue
subject
proof
in the
sense, rather[,]
traditional
it frames a
discretionary
jury.”
Wagner,
determination for the
State v.
(1990) (Wagner
5, 18,
93,
309 Or
786 P2d
cert den
109 S Ct
In our review of a decision to impose penalty by the death is not foreclosed the discretion ary question, nature ofthe fourth nor the absence of a bur requirement den-of-proof question. preceding for As paragraph although question demonstrates, the fourth is dis cretionary subject proof, jury’s and not to a burden of deci *35 question upon sion under that still must be based the evi presented Consequently, dence at trial. we conclude that a may jury’s question court review decision under the fourth in order to determine whether, evidence, view of the juror, accepting rational reasonable inferences and reason credibility able choices, could have concluded that the defen recognizes dant should be sentenced to death. That standard juror imposing penalty, the role of discretion in the death providing judicial jury’s also while for review to ensure that a rationally upon presented. decision is based the evidence judicial Because such is available, review defendant’s due process argument, nity depends upon opportu which the lack of judicial
for review, is without foundation. reject light
We also
defendant’s assertion that, in the
Supreme
Oberg,
ofthe
512
Court’s decision in Honda Motor Co. v.
(1994),
415, 114
S
2331, 129
US
Ct
L Ed 2d 336
we must
Oregon’s
penalty
conclude here that
death
statutes unconsti
tutionally preclude post-verdict judicial
Oberg,
review.
Supreme
applied
punitive damages
Court held that, as
(Amended),
Oregon
awards, Article VII
3,
section
of the
Con
stitution, violated the Due Process Clause of the Fourteenth
punitive damages
Amendment, because the amount of a
subject
judicial
award was
review under Article VII
(Amended),
supported awarding
3,
section
if
evidence
punitive damages.
Court
focused
from tra-
procedures
reviewing punitive damages
ditional
awards in
concluding
Oregon’s
judicial
lack of
review violated due
process.
Oberg,
(discussing
See
512 US at 421-29
traditional
procedures
reviewing punitive damages
for
awards and con-
trasting Oregon’s statutory approach). Secondly, on remand
Supreme
appro-
from the
Court, this court concluded that the
priate post-verdict
punitive damages
standard of review of
(Amended),
awards, under Article VII
3,
section was to deter-
“[was]
range
mine whether the award
within the
that a
juror
light
rational
would be entitled to award in the
Oberg
record as a whole.”
Co.,
v. Honda Motor
544,
Or
(1995),
549,
Our final in apply juror” of error is to the “rational review, standard of as jury’s impose pen above, set forth decision the death alty although in this case. We first note raised the constitutional trial, issue discussed above at he did not raise issue whether the in evidence this case was support jury’s ques insufficient to answer to the fourth Despite preserve tion. defendant’s failure to that issue, how reviewing ever, conclude, we after the evidence, that a juror, accepting rational all reasonable inferences and credibility choices, reasonable could have concluded penalty. Accordingly, receive the defendant should death we reject assignment defendant’s contention in this of error that we his sentence of death. should vacate
VI. CONCLUSION summary, we conclude that none of defendant’s assignments relating phase of error to either of his trial is Consequently, taken. well we affirm defendant’s convictions aggravated kidnapping, burglary, murder, for murder, and we also affirm the sentence of death. judgment
The of conviction and sentence of death are affirmed. dissenting.
FADELEY, J.,
majority’s rulings
I dissent because of the
that evi-
political
passing
“political
dence of
pam-
beliefs and
out a
phlet”
respect
is admissible in evidence with
to future dan-
gerousness in this case.
I do not polit- social or permitted ical death-penalty phase beliefs should be in the aggravated an murder case, however aberrant or abhorrent may passing those beliefs cal politi- be, or that evidence of out a pamphlet should be so admitted. The label “neo-Nazi” is merely type not supremacist.” labeling, cumulative of another i.e., “white may convey
Those terms different, but still prejudicial, thoughts juror. Basing dangerousness to a future (rather conduct) political on beliefs than on violent is a net point King George that, from the of view of III, would have caught at country least some of the founders of this who expressed against government themselves the colonial sought their time. The founders to leave all that behind. We should heed their lesson.
Further, I do not see that evidence of defendant’s political any way social or beliefs is “tied in to the murder”1 of parents. political defendant’s wife’s That was not a act but family family, was political affair. beliefs, is the passion anger source of the here. respectfully
I dissent. *37 wording quoted Delaware, 159, 166, S is from 503 US 112 Ct Dawson v. 1093, 117 (1992). L Ed 2d 309