State v. Rose

6, 1990, Argued judgment affirmed to defendant’s submitted November degree; aggravated murder of death conviction for the first sentence proceedings May court for vacated and remanded the circuit further 24, 1991 September reconsideration denied OREGON, STATE OF Respondent, ROSE, JASON WAYNE Appellant. S36201)

(CC 10-88-05312; SC P2d 839 Defender, Salem, argued Public Alessi, Deputy Diane L. Paul J. the brief were her on for With appellant. the cause & Robertson Hemann, Garrett, Seideman, De Muniz Salem. Muniz, De Salem, General, Attorney Metcalf, A. Assistant

Janet were brief her on the With cause for respondent. argued Linder, L. General, Virginia Attorney Frohnmayer, Dave 275-a Zier, F. General, Douglas Brenda J Peterson

Solicitor General, Salem. Attorneys Assistant HOOMISSEN, J. VAN

275-b HOOMISSEN, VAN J.

This is direct of a judgment an automatic and review and of death. conviction murder sentence 163.150(1)(f) (1987) (now Former 163.150(l)(g)). ORS ORS reversal of his conviction of aggravated seeks he this court to vacate his Alternatively, requests murder. sentence of death. He also seeks reversal his conviction of affirm degree.1 first We defendant’s convic this case tions. We vacate his sentence of death and remand court with proceedings the circuit for further consistent this opinion.

SUMMARY OF FACTS Therefore, found defendant we view guilty. the state. State v. the evidence the most favorable light Stevens, 121, Or P2d 92 area in 1,1988, On June children a wooded playing a with body found human covered brush Springfield, Oregon, the found a board. Near the victim’s a body police hat ring, pin, matching a and human hair turquoise lapel being identified as ring pin the victim’s. The were yards body victim’s Several hundred from property. police pots, utensils, found multi-colored campsite, cooking circle, later arranged candles in a and á machete which was to defendant. belonging identified John Jones was a friend of defendant. Michelle Ray found, After victim’s body was Jones’ friend. Slagle victim’s Slagle and Jones talked with about defendant had killed the Jones he and defendant Slagle death. told “they said that beat Slagle victim. testified defendant * * * her, her ribs in” and that he her, choked kicked to choke her.” “used machete with defendant and Jones.

Robyn Newman worked that he told her knew testified that Newman he Jones had to death, victim’s something about the 12.10(2) provides: ORAP “If, forming aggravated murder the basis for a conviction for addition to arising charges sentence, from is of one or more death a defendant convicted jurisdiction instrument, Supreme shall have charging Court the same appeal.” filing notice any of a such conviction without review get money, kill the victim in order to the victim “had a friend, head,” “easy on her and that it is to kill a price if know them and know you they going don’t what’s especially on, because can close to a friend.” On different you get occasions, saw defendant and Jones with “rune Newman stones.”2 Defendant and throw the “rune Jones would book, stones” on the and then with the aid of a ground their told the that “the interpret meaning. police that, victim], rune said if we didn’t kill we would die.” [the Janice Johnson also saw defendant “rune using stones.” Defendant told her that he used the stones to find out whom he would kill next sometimes he had to “hurt kill good them.” people the time the

By police had focused their investigation Jones, on defendant and the two men had to Arizona. gone The police there, and, located them on 13,1988, Captain June Smith and Detective Bond flew to Arizona and arrested defendant and Jones for murder. Defendant was advised of his Miranda rights, which he said that he understood and was willing waive. He to talk to the agreed police about victim’s death.

During interview gave several ver- sions of the cause of the First, victim’s death. he said he knew the victim but did not Second, know how she died. he said he had seen the victim died, on the she day but that he did not know how she died. he Third, said he was with the victim a fell, when tree branch killing scared, her and he covered got and left. body, Fourth, he said he a threw wooden spear that he was carrying and that the spear struck a tree branch which victim, broke and fell on the her. When Detec- killing tive Bond told defendant that Jones had confessed to murder defendant, and had implicated defendant said that Jones had killed the victim and he, himself, an “acces- only to her sory” death. Defendant said he did not want to kill the ‘ ’ victim, but he had a ‘choke on her put hold’ until she became “runes,” We understand “rune stones” to be small stones marked with early peoples alphabets characters of used Germanic found in the tribes (as parts opposed north Scandinavian and remote of Sweden to the Greek and Latin alphabets). Although primary give spoken language purpose their a was to fixed form, throughout history commonly their runes have been considered to be associ- Rune, magic. Britannica, Encyclopedia with ated 754-55 and that after he laid her on the Jones ground, unconscious on a machete. “whacked” her the back the neck twice with witch,”3 was a who Defendant said victim “black Shelton, was a who had threatened Vaughn person friend kill said Jones wanted the victim defendant. Defendant had in a that, dead and after defendant had victim “sleeper hold,” said, “I this sacrifice the name of give you Jones he Jones placed spear Arioch.”4 Defendant said then neck and stood on both ends it for ten across the victim’s removed the and sacri they jewelry minutes. Then victim’s then ficed it “some Defendant said that removed god.” it the victim’s blouse and her to make as ripped pants appear her though they she had been and then raped, put body shrubs and it with a board. covered back Smith and Bond took Oregon,

On arriving crime, the of the both defendant and Jones to scene where men Three of the agreed to reenact the murder. reenactments (State’s Exhibit murder were recorded on a single videotape 28). alone, first reenactment was defendant the second by by was the third was defendant and Jones by alone, Jones victim in all A was to portray used together. mannequin three reenactments. reenactment, summarize the first rendered

We Jones, 30,1988, defendant, May defendant alone. On or about and Jones and the victim went to a that defendant campsite went had Defendant and the victim into set earlier. up later, defen- bushes have About minutes to intercourse. He thought Vaughn dant and footsteps.” heard “voices for Defendant left victim looking Shelton be him. might “spears” find and Jones then took Jones. Defendant the victim came thereafter, for Shelton. Soon began looking He threat- him. turned and defendant, behind up startling we defendant, “Should ened her his Jones asked with spear. But I answered, “Not want yet. kill her now?” Defendant why Later, police thought did the victim that he one reason told killing a told her that she was struggle while her was because he much were greatest right giving you honor sit at the hand black witch and “we’re Arioch hell as a sacrifice.” Arioch, apprentice police “who served told the that Jones was an god worshiped described himself evil human sacrifice.” Defendant chaos and dead). (someone conjures up spirits of the a “necromancer” who — disobey so, bitch dead the runes said and we don’t runes.” she

Later, the victim told defendant and Jones that working very angry and was for Shelton. Defendant became you “Bitch, I stated, shouldn’t have told me that. don’t want you, to kill Defendant it looks like we have to now to survive.” but

grabbed the victim around her neck and struggled finally “wrenched down hard.” She but became ground. unconscious, and defendant laid her face down on the that the Defendant removed the sweater victim was wearing, evening which he had loaned to her earlier in the keep pulled jacket off, warm. When he the sweater her also grant said, Arioch, came off: Defendant “In the name of we you your sacrifice, now!” Jones the victim on the struck twice back of her neck with a machete. Defendant walked toward body did, the victim. As he up. her rolled over so that it face breathing regain The victim was still and she started to “karate-chopped” consciousness. Defendant her in the brought just throat and his into her elbow down stomach pulse below her ribs. Defendant felt checked victim’s body that she still had one. He straddled her and choked her for with his hands five to ten minutes. suggested they lay spear then

Jones across her agreed neck. Defendant spear and the men stood on both ends ofthe talking for about 20 minutes about the “rune what stones” had said to them. Defendant and Jones checked the body. They pulse body victim’s did not feel a and her felt cold. they Nonetheless, dead, to be certain that she was stood on talking spear for another five minutes about “what the the asphyxia of due to runes said to do.” The cause death was strangulation. necklaces, took the victim’s three and he

Defendant rings. body then threw the and Jones took her The two men gully. performed keep While defendant a ritual to evil down spirits body

away, brush and a board. Jones covered the with They purse, placed in and carried the necklaces the victim’s jacket purse, rings, back sweater, the to their the the and the victim’s campsite. of Defendant built a fire and threw some gods jewelry into the fire a sacrifice to two who the victim’s take “jewelry Defendant and and crafted items as sacrifices.” gave kept jewelry they Jones the did not sacrifice and 5 Defendant the kept it to their respective girlfriends. some of to make a “resin” which he used bag, victim’s cosmetics he and wore. kit, and her which altered (marijuana) jacket, murder, After defendant reenacted victim’s he the victim. killing Detective Bond asked him how felt about that he had the sev- “passed through Defendant responded sacrifice, a human which, enth he was gate,” explained, Bond, was him feel Defendant told “She good. it made “this a human sacrifice.” hard to kill” and that was defendant’s first reen- A exists between discrepancy the third reenactment defen- of the murder and actment reenactment, defendant In the first together. dant and Jones after she jewelry the men had taken the victim’s said said the victim was reenactment, In dead. the third Jones with jewelry. agreed took her still alive when latter statement.

Indictment of aggravated with one count charged

Defendant was (murder theories on four different murder based degree; in the first robbery in furtherance of course of and kidnapping; in furtherance of in the course of and murder maiming; of intentional in course of or as a result murder of in of or as a result and murder the course intentional torture). first robbery He with charged also was guilty verdict A returned a unanimous degree.6 (in in furtherance of the course of and murder first robbery degree. first degree) to the ques answered “yes” phase, In the penalty 163.150(l)(b). Thereafter, ORS tions posed former for purposes defendant’s convictions court merged trial of conviction entered a judgment and then sentence of death. sentence ERROR OF

ASSIGNMENTS PHASE GUILT A. ring and and another Slagle ring received from defendant that she identified girlfriend of the gave another his from Jones. necklace that she received losing it. for a while before rings. of the victim’s necklaces Defendant wore one

victim’s Ray the indictment identical against Jones was John The indictment against defendant.

Judgment Acquittal of

Defendant contends that the trial erred in court his motion for of denying judgment acquittal on of charge in the first robbery degree aggravated murder. appeal concedes on the evidence at

trial he shows that and Jones used force physical upon the victim and that committed theft of her jewelry, clothing, and personal however, effects. He “the argues, evidence also shows that force he and Jones used the victim upon was for the of her harm death only purpose or and not causing with the intent of or her resistance to preventing overcoming the theft. The removing victim’s] jewelry personal [the effects dead, [the victim] occurred was as an apparently after that, He further afterthought.” argues because no causal was shown between the force relationship physical used on the victim and the theft of her the evidence was not property, jury beyond sufficient for the to find a reasonable doubt that he State relies on v. guilty robbery. He primarily Jackson, 40 App (1979), Or 596 P2d 600 which held that for there to be there must robbery, be a relationship between the force used theft and the committed. Defendant that, further argues because the not evidence was sufficient for the have him to convicted robbery first degree, his conviction of murder based on theory murder must be felony also reversed.

We to the sufficiency review of evidence challenges solely determine after in whether, viewing the evidence light state, most favorable to any rational trier of fact could have found the essential elements of the crime proved beyond a reasonable doubt. Our decision is whether we believe defendant is guilty doubt, a reasonable beyond but whether the evidence is for the sufficient to so find. King, 332, 339, P2d 391

We consider first defendant’s conviction of robbery the first degree. ORS 164.415 provides part:

“(1) A commits the crime of the first person robbery degree if person person: violates ORS 164.395 and the

* * * * ‘‘(c) cause attempts physical injury Causes serious any person.” 164.395 in part: ORS provides

“(1) A person commits the crime of in the third degree if in committing attempting the course of or to com- or mit theft the uses threatens the immediate use of person person force another with the intent of: physical upon “(a) Preventing overcoming taking or resistance to the ***[.]” of the property

In order to sustain a conviction for in the case, of degree prove first the context this the state had to doubt, beyond jurisdiction in addition to reasonable (1) venue, theft; that of committing defendant the course (3) (2) of victim; used force the with the intent physical upon her to of the overcoming or resistance the preventing taking (4) that, he caused her serious property; process, 164.415; ORS 164.395. injury. ORS physical first, second, and fourth elements noted above in this case. admits Respectively, are not at issue defendant he a theft of victim’s that he property, committed the her, he serious used force and that caused her physical upon ele- Defendant’s assertion is that the third injury. physical He that there is no evidence to argues ment was proven. with the that he upon used force victim prove physical intent of her resistance to the theft preventing overcoming or of the Thus, argues, her he there no property. proof and mental relationship physical causal between requisite elements of the crime robbery. ever, intent is if rarely,

Evidence of a defendant’s mind, operation direct evidence. Intent is an proven subjective This susceptible proof. and it is seldom of direct objective a consideration of usually fact is established is facts, and facts an ultimate conclusion objective from these Elliott, drawn. State v. P2d 382 528-29, his or her intent for A does not telegraph is track of to there no see, stopwatch keeping the world act is formed. specific when a defendant’s intent commit case in this below, For the reasons stated we conclude that surrounding is sufficient circumstantial evidence there force and his use of defendant’s theft of the victim’s property his have her that could inferred jury properly upon over- preventing intent of or use of force was with the his theft of her property. her resistance to coming Although the state is not required prove a defen dant’s motive for a crime, it charged do may so.7 The issue here, however, why is not i.e., defendant did did, what he his motive, but whether he committed the proscribed acts with the requisite Nonetheless, intent. evidence of a defendant’s motive bemay relevant, as circumstantial proof, the issue If, intent. for in this example, case the jury may infer that defendant had a motive to steal the victim’s before property during criminal episode both a involving of the taking victim’s property and the use of physical force on victim, may also infer that defendant’s use of force was accomplished, at least in with part, the intent to prevent or overcome the victim’s resistance to that theft.

Evidence was presented in this case of an array of motives for defendant’s theft of the victim’s both property before and during the criminal episode. Defendant told New- man that he and know, Jones “might something about murder”; [victim’s] and that “it’s to kill easy friend, espe- if cially you know them and they don’t know on, what’s going because can you close get friend”; to a that “they needed money they and were for a looking place to live.” Defendant also told Newman that the victim had a “price on her head” and that they “had to kill [the victim] order to get the money.” Defendant admitted sacrificing some of the victim’s to jewelry gods two who take “jewelry crafted items as ’’ sacrifices, giving some of toit Slagle Adams, and keeping some of it for himself.

In context, the was entitled jury to infer that defen- dant and Jones stole the victim’s property get to The money. also jury was entitled to infer that defendant and Jones stole the victim’s to sacrifice property it to who gods take “jewelry and crafted sacrifices,” items as and that the sacrifice of the victim and of her were property of a part scheme to placate their The gods. jury also was entitled to infer that defendant and Jones stole the victim’s to property give it to their girlfriends, or to for their keep own use. Additionally,

7 Motive is the cause or reason that moves the will and induces action. Motive is robbery not an required prove element of the crime of and the state is not motive. If trial, evidence of motive is offered at then motive is but a circumstance to be surrounding considered with other evidence the commission of the crime and to be Walker, given only weight proper. such as the trier of fact deems Or 411-12, 417 P2d 1004 after a victim’s victim’s property of a possession defendant’s motive underly of the defendant’s is some evidence murder that are of open, Those are circumstances the homicide. ing are nonetheless circumstances but course, explanation, motive. on the of question is entitled to consider that the jury defense counsel’s accept was not bound to physical and Jones used when defendant argument9 for the of only purpose did so they the victim upon force intent of and not also with the her harm or death causing theft of her her resistance to the or overcoming preventing the victim’s intent to take formed the they or property mere after dead, and then as a after she was only property was sufficient the evidence We conclude thought. that, doubt a reasonable beyond to have found permit property, theft of the victim’s committing of in the course victim with force on the physical and Jones used defendant resistance to the her overcoming of or preventing the intent the victim serious caused that, theft, process, court, The trial 164.395; ORS 164.415. ORS injury. physical motion for defendant’s therefore, denying did not err in the first charge on the acquittal judgment degree. conviction aggra consider defendant’s

We next murder. of felony on a robbery theory murder based vated murder of which aggravated theory The state’s following statutes. based on the convicted is relevant murder in 163.095 defines ORS part: ‘aggravated this section 163.105 and

“As used in ORS which is 163.115 as defined ORS means murder murder’ following of the any under, accompanied by, committed circumstances:

(£$ * * * * “(2)(d) 163.115(l)(b), the defen- Notwithstanding ORS the homicide intentionally committed personally dant 163.115(l)(b).” in ORS forth circumstances set under the Weston, 8 (1968); 102 Gibson, 241, 244-46, 448 State v. P2d 534 252 Or State v. 540, 550, 128 P 824 (1921); Humphrey, Or 129-30, 63 102, State v. 201 P 1083 Or (1881). (1912); Wintzingerode, 9 Or 153 v. State 9 testify his trial. at Defendant did not

285 ORS 163.115 in provides part: “(1) in Except provided 163.125, ORS 163.118 and criminal homicide constitutes murder:

ii* * * * *

“(b) When it is committed a person, acting either alone or with one or persons, more who commits or attempts any following to commit of the crimes and in the course of furtherance of the person committing crime the is or commit, attempting during or flight the immediate there- from, the person, or another if participant any, there be causes person the death of a other than one of the participants:

((* * * * *

“(G) Robbery degree the first as defined in ORS 164.415[.]”

In order to sustain a conviction for mur der in the case, context of this the state had to prove beyond a reasonable doubt that defendant personally intentionally committed the homicide in the course of and in furtherance of robbery in the degree. first ORS 163.115(1)(b); ORS 163.095(2)(d). The relevant is question not whether the vic tim’s death preceded, occurred during, followed the rob but bery, whether the robbery and the defendant’s acts that caused the victim’s death time, are so related in place, and circumstances the trier of fact could find beyond reasonable doubt that the homicide “in occurred the coursé of Little, and in furtherance of’ the robbery.10 State v. 249 Or cert den 297, 310-11, 431 P2d (1967), (1968); US 955 Jensen, State v. 239, 209 Or 262, 289 P2d 296 P2d 687, 618, cert den State v. (1956); 352 US 948 McCarthy, 196, 160 Or Brown, (1938); 83 P2d 801 Oregon 7 Or 186 (1879); Scott, LaFave and § Substantive Criminal Law (1986). 7.5(f), at 228 Something more than a mere coinci dence of time and however, is place, necessary show the homicide occurred “in the course of and furtherance of’ the There felony. must have been some causal relation and the homicide. State v. between the Schwen ship sen, 506, 516-17, (1964); 237 Or 392 P2d 328 LaFave and appears argue property To the extent that defendant that the theft of after murder, may felony wrong. a victim has been killed never be defendant is ORS Little, 163.095(2)(d); 297, 310-11, (1967), State v. 431 P2d 810 cert den 390 US 955 supra, (there

Scott, 7.5(f), § at 222 must be some causal death). felony between the and the relationship is in record jury There evidence the from which the the could have inferred that force used defendant physical and in the of in the first was robbery degree Jones commission the force used to kill her. There is evidence same they inferred the juiy record from which the could have that of and the were and an overall part parcel homicide robbery noted, the and kill her. scheme to rob victim As vic- intentionally admitted that he killed the personally he her tim and that committed theft of property. in favor- viewing light the evidence the most

Again, state, able to conclude that the evidence was sufficient the we the the have found the essential elements of permit jury to crime murder a doubt. aggravated beyond of reasonable therefore, did in court, denying trial not err defendant’s the of motion for of on judgment acquittal charge aggravated murder.

Instruction in the court Defendant contends that trial erred need all on the jurors they agree that not instructing mur the homicide aggravated factual circumstances making der. to that instruction on the excepted ground Defendant that it that all 12 on require jurors agree particular did that his theory argues right of murder. aggravated on murder count was aggravated to a unanimous verdict He relies on primarily violated that instruction. Boots, P2d 371, concedes,

The state and we that the trial court agree, however, argues, erred in instruction. The state giving the fact, all 12 in harmless, jurors, the error was because inten- was committed agreed personally murder robbery of furtherance tionally and the course degree. the first trial, gave jurors the trial court

At the close of four theories As to each of the state’s verdict form. special indicate the court instructed murder, aggravated that the agreed particu- form all on the verdict whether If vote not unanimous lar had theory proved. been could proved, been theory that a had particular answer a “fifth that all 12 question” indicating agreed aggravated murder had been proved, but that less than twelve agreed as to the aggravating circumstance.

The jury returned the following verdict: 1, guilty “Count guilty murder. Count degree.” in the first verdict special form reflected all 12 that jurors agreed that defendant committed in aggravated murder the course of and in furtherance of robbery the first degree. Questions 2, 3, and 4 on the special form, verdict dealing with the state’s three other theories of aggravated murder, were answered “no.” The “fifth was question” not answered. The trial judge juror asked each if he or she concurred that the defendant was guilty aggravated murder if he or she concurred that the murder was committed in the course of and in fur- therance of in the robbery first Each degree. answered juror “yes” to both questions. The presiding juror that reported the jury’s verdict on the in the first robbery degree count was unanimous. Boots,

In State v. this court supra, held that an instruction similar very to the instruction given in this case was erroneous and that, under the circumstances of that case the error required reversal- of the defendant’s aggravated murder conviction. This court that emphasized to convict a defendant of aggravated murder the jury agree must unani- mously on the particular factual circumstance that makes the homicide aggravated murder. 308 Or at 377-79. The record in Boots did not show whether all 12 jurors had on one or agreed both of the two theories of murder alleged by Boots, state in that case. In the jury was neither a given special verdict form nor was it as to whether the polled jurors agreed on one or unanimously both of the state’s theories of aggravated murder. We conclude that this case is factually distinguishable from Boots. The issue presented here is not — whether the trial court erred in giving instruction it did —but whether the error requires reversal. We conclude that it does not. The record shows that jurors unanimously agreed both as to guilt defendant’s the first degree and as to the factual circumstance that made the murder aggravated. Thus, our concern in Boots

288 — his that the defendant have been constitu- deprived may — tional unanimous verdict in a case capital is right obviated verdict returned here. has identified that any may

Defendant prejudice instruction, have from the trial court’s erroneous resulted conclude, therefore, error and we none. We perceive Walton, v. 231, 223, was harmless. 809 P2d 81 (1991). conclude, We also the federal constitu required by tion, that the error was harmless a reasonable doubt. beyond v. US 87 L Chapman California, 18, 24, 824, 17 S Ct Ed 705, reh’g den 2d US Reenactments

Videotaped contends the trial court erred of an introduction into evidence unedited permitting 28, version of State’s Exhibit which contains reenactment argues the homicide Jones alone. He jury Exhibit room. the means to view State’s given not a witness whom defendant could Because Jones was States, Bruton United cross-examine, S 391 US 88 Ct 1620, 20 (1968), argues L Ed that ¿/the 2d 476 reenactment, rights his confrontation viewed the Jones then Constitution, I, 11, of Oregon under Article section Amendments to the United States the Sixth and Fourteenth Constitution were violated. first offered State’s Exhibit trial, prosecutor

At the then 28, prosecutor the in evidence. The videotape, unedited videotaped to the first and third limited his offer expressly reenactments, by alone and defendant by those defendant that, counsel told the trial court together. and Jones Defense reenactment, the made understanding that second with the he no alone, offered, not had to being objection Jones was by State’s Exhibit 28. Exhibit 28 the by jury

The of State’s viewing the first reenact- after the showing jury occurred as follows: recess, for a the asked ment, alone, prosecutor defendant by second the the videotape past he forwarded during which by start of the third reenactment Jones the by reenactment recess, prosecu- the the After together. Jones reenactment. third jury tor showed to the trial later concern prosecutor expressed The videotape. single on a all three reenactments were court that He if warned court that this a might present problem viewed State’s 28 in the room jury jury Exhibit because second reenactment recorded on the exhibit had not been offered the state. The that an edited suggested prosecutor 28, of State’s Exhibit the first and third copy containing only reenactments, be made for the use. The court and jury’s defense counsel both with the agreed prosecutor’s suggestion: Well,

“THE you ought COURT: it seems to me what proceed put your do is them all on separate tapes from and then copies, perhaps you agree defense counsel can and. thing this is the same already what has been received evidence. I think proper

“[DEFENSE that’s the COUNSEL]: solution, Your Honor. I very would be reluctant to have them jury back in the room looking at the first reenactment by go through [defendant] then have to the [second] reen- Jones, actment by Mr. and then [third] see the reenactment. They might want to see what Mr. Jones said.

“THE COURT: I wouldn’t do that under any circumstances.”

During deliberations, the presiding juror requested that the be given television, VCR, and the videotape the reenactments. We assume this request respected. record, however, does show affirmatively whether State’s Exhibit all three reenact- containing ments, or an edited version was given to the jury; ambiguity forms the for basis defendant’s assignment error. For the below, reasons explained we conclude that jury did not see the Jones reenactment.

The record shows that the trial court and counsel were aware that only the first and third reenactments had been offered in evidence trial state. The stated judge that he would not allow the to see the Jones reenactment “under any circumstances.” The and defense counsel judge expressly agreed solution was to make an proper edited version of State’s Exhibit 28 for the use. The jury’s record one, contains two which is marked videotapes, reenactments, “State’s Exhibit 28,” No. contains all three (edited other, the which is marked “State’s Exhibit 28No. version)” Reenactment,” and “Jury State’s No. 28 Copy the only contains first and third reenactments. defen- support

We conclude that the record does not the that the viewed reenactment suggestion dant’s find this of error Accordingly, Jones alone. we claim unpersuasive. Body Victim’s

Videotape of contends the trial erred Defendant court victim’s evidence a the admitting videotape showing into the the the apparently at scene of crime and at body hospital argues for being prepared autopsy. portions OEC 403 unfairly provides: of the were videotape prejudicial. relevant, may pro- be excluded if its “Although evidence substantially outweighed by danger of bative is the value issues, misleading or the prejudice, unfair jury, confusion of the delay or presen- undue needless considerations tation of cumulative evidence.” objec-

When the trial court asked whether defendant stated: exhibit, ted to the defense counsel such, objection tape Your any “I don’t have to the as argue against I the intro- point Honor. do at some will [sic] body. It’s cumulative any pictures duction more of the film and then right they pictures now. have and then the But now, I showing tape right far this pictures. But as other objection.” don’t have any

The exhibit was then received evidence. the to show the prosecutor began Before the “autopsy it any counsel asked whether had videotape, defense videotape on answered that prosecutor it.” pictures Defense victim’s at body hospital. showed of the pictures then the court: counsel told Honor, film, objection

“I of the Your part do have an to a unduly prejudicial to the I think that’s hospital. at before start just it’s Apparently defendant. autopsy.” videotape and the objection, counsel’s

The court overruled shown to the jury. is evidence When defendant claims relevant trial OEC unless and relies on unfairly prejudicial is evidence value probative concludes that judge for prejudice, its unfair substantially outweighed by potential Pinnell, must be admitted. relevant evidence

291 (1991). 98, 112, Or 806 P2d 110 when Generally, evidence is relevant an in issue we dispute, defer to the decision Walton, trial whether or not to admit it. State v. judge supra, 311 Or at 234. Defendant does argue that the evidence was not relevant. suggest Nor does he any cogent reason why we should from depart our traditional view that we review the Moen, triad judge’s ruling discretion. State v. for abuse 309 45, 70, Or 111 786 P2d We find no abuse of discretion and, thus, here no error.

B. PENALTY PHASE Mitigating Evidence

Defendant contends that the trial erred, court during penalty phase trial, his in refusing give his requested instruction on mitigating evidence.

The state concedes, and we agree, the trial penalty court’s phase instructions were inadequate to comply with this court’s State v. Wagner, 309 Or 5, 14-20, in opinion cert den_US_, 786 93, P2d 212, 112 S Ct Ed 2d L (1990), which was decided after the trial in this case. Therefore, we vacate defendant’s death sentence and remand this case to the circuit court for further consis proceedings tent with this opinion.

We address one of defendant’s other penalty phase assignments of error because the issue may recur on remand.

Instruction

Defendant first contends the trial court erred instructing jury about the legal definition of life imprison- State v. Douglas, 310 Or 438, 450-51, 800 P2d 288 In ment. (1990), we stated:

“In the making relevant, absence of evidence it a trial court give should not an instruction on the release of possible persons prison sentenced to life in in a proceeding under ORS (1987).”11 163.150 Because we have remanded this case for new penalty phase Douglas, We did not decide in State v. 10, 451 n 800 P2d 288 (1990), whether, might or in appropriate what such an circumstances instruction be statute, (1989), provides under the new ORS 163.150 which the additional sentenc- ing imprisonment possibility parole. alternative of life without of release or we need not determine the trial court

proceeding, whether note that Douglas regard. erred this We was decided after case, in this write trial and we to alert the trial court only holding Douglas. to our counsel balance phase assign- of defendant’s penalty ments of error need not be addressed. Some issues with to them will arise on remand. The exact respect doubtless issues, however, nature those is sufficiently problematical new penalty we believe issues are best left to the and the record the make in that proceeding parties may proceeding.

CONCLUSION have each of and guilt We considered defendant’s error made assignments every argument and penalty phase in thereof. not dis- Any assignment argument support has been court opinion by cussed in this either considered this defendant, taken, and resolved is not well previously against or is to recur remand. We find no error unlikely on reversible of error. assignments based on those DECISION is affirmed as to defendant’s convic- judgment The and in the first degree. tions for murder The is remanded to the of death is vacated. case sentence with court for further consistent this proceedings circuit opinion.

FADELEY, J., concurring. dissenting and

I. in my dissenting I dissent reasons stated for the Moen, v. 45, 102-04, Or 786 P2d 111 in 309 opinion (1990) in J., Following its decision (Fadeley, dissenting). L 2934, 106 Ed 2d v. US 109 S Ct Penry Lynaugh, an Supreme Court vacated (1989), United States sentence, of inadequacy because death Oregon penalty whereby the method statutes describing Oregon’s will or death be determines whether life imprisonment 914, 109 Ct Oregon, 492 US S imposed. Wagner sentence L 2dEd 3235, 106 (1987), 163.150 inadequate, ORS

The statute found adopted process by initiative by proposed voters 1984. On vacation of sentence and Wagner’s remand to Oregon by the United States Supreme Court, the Oregon Supreme Court majority reacted á decision to save the initiated statute adding 100-word amendment. See State v. Moen, supra, 309 Or at 102-04 (dissenting opinion), State v. (1990) Wagner, 5, 20, 786 P2d 93 (dissenting opinion). After making amendment, statutory of this majority court then remanded Wagner to the trial court for a new trial of the penalty phase to determine whether the new sen- tence should be life imprisonment or a death sentence. The statute was found to be but, with the inadequate addition of the majority’s 100-word amendment, is to be used for the new trial.

I continue to dissent from the decision of the majority to make an after-the-fact addition to the statute that the people did not include when they voted to I adopt statute. also object to the attendant delay finality the added cost which that delay produces. The United States Supreme Court decision vacated the sentence of death but not Wagner’s conviction on plea his of guilty to an aggravated murder committed 1985. He could have been sentenced to a life term immediately and that case would have been closed.1 Likewise, in the present case, a life sentence should be on the imposed defendant in this court and this case should be closed. Instead, the majority remands for a new penalty-phase jury trial.

II. Assuming that the local authorities elect to retry this case remand, on I am mindful of the fact that 12 new jurors who have not previously been exposed to the case will make the life or death decision by the answers to they give questions posed by the statute as amended I am majority. also mindful that these jurors will be told at the beginning of the proceed- retrial ings that defendant has been already convicted of aggravated is, murder and therefore, eligible to be to put death and that are they to required that as a accept given fact.

I disagree with the of the portion majority opinion this case that relates to the propriety instructing the jury 1 written, being While public this is was informed that a life sentence will be imposed Wagner, obviating on Mr. penalty phase a retrial of the in his case. The same ultimately Moen, 45, result was reached on remand of State v. 309 Or 786 P2d 111 (1990). grounds disagreement life for options. about its sentence Douglas, v. 438, Or 800 P2d 288 454, are stated Simonsen, (1990) State v. concurring (specially opinion), (1990) 412, concurring 418, (specially 798 P2d 241 Or 320, 105 S See also Caldwell 472 US Mississippi, opinion). (1985). 2633, Ct 86 L Ed 2d 231 must told both that directly I believe that the be it to choose a life sentence rather than has the option gives and that the answers that the death sentence on the verdict form determine whether the sen- questions otherwise, life the constitutional death; require- tence is or and Caldwell not met. the ball Penry may Hiding ments of be from as sentencer is not tolerable. the jury

III. I of the court that concur with the decision need not be of error remaining penalty-phase assignments as to how the it is presently problematical dealt with because out will be played that the raise remaining assignments issues that as sure as the not, however, majority on remand. I am will arise on remand.” kindred issues “doubtless closely record nor issues, present Those which neither clear, involve complex are appellate arguments complete 401-404, 701-703, other issues. among under issues OEC at I do believe it is all instance, likely For OEC 403 remand, admitted on over an evidence will be court’s per without the trial objection prejudice, undue balancing admission under before forming “prerequisite” Pinnell, do I P2d 110 Nor State v. 98, 113, necessarily again permitted will be lay that a witness believe 703, OEC an under opinion as an expert giving testify movies upon OEC based on character under bearing of defendant’s watched, or upon comparison and Charles Manson. Adolf Hitler interests with those of will sorts of issues for these predicates Whether the if of those issues remand, the exact nature recur on are best issues is sufficiently problematical reappear, day. left to await another

Case Details

Case Name: State v. Rose

Court Name: Oregon Supreme Court

Date Published: May 2, 1991

Citation: 810 P.2d 839

Docket Number: CC 10-88-05312; SC S36201

Court Abbreviation: Or.