*1 February Argued September and submitted affirmed 1. OREGON, OF
STATE Respondent, WAGNER, JEFFREY SCOTT Appellant. S32635)
(TC 85061212; SC
Gary argued Public D. David E. him the brief were appellant. cause With Portland, and Lawrence J. Phillip Margolin, M. Groom and Hall, Salem. *4 Attorney General, argued Fussner, Assistant
Jonathan H. Dave the brief were respondent. With him on the cause for Linder, General, L. Attorney Virginia Solicitor Frohnmayer, General, Denney, Terry Ann Leggert H. and Thomas General, Attorneys Salem. Kistler, Rives Assistant
116-c Roseburg, Cremer, filed an amici curiae brief on Richard A. Oregon and of American Civil Liberties Union of behalf Lawyers him on Criminal Defense Association. With Phillips Homan, Robert C. V. brief were Michael Eugene. Tufts, L. William
LENT, J. opinion.
Linde, J., dissented and filed an opinion Gillette, J., Linde, dissented and filed an in which joined. J.,
116-d
LENT, J. under ORS is the first case reach court
This 163.150(6),1 provides: which aggravated judgment of conviction murder] “The [of subject and direct to automatic death shall be sentence of Supreme by the Supreme The review by the Court. review cases, shall be priority have over all other Court shall promulgated rules
heard in accordance with Court.”2 aggravated murder charged with
Defendant was *6 indictment: following the (are) by defendant(s) is the accused “The above-named County, Oregon, by Jury Linn of this Indict- Grand State Murder, Aggravated
ment of the Offense of defendant(s) did, County, Linn in State of “The said 27,1985, 26,1985, unlawfully Oregon, June and June between being, intentionally human to- and cause the death of another by proceeding, Koenig, wit: Jeri A. a witness a criminal Koenig her strangulation hitting Jeri A. head and about neck, performance of being to the Jeri and said murder related system, contrary A. Koenig’s justice official duties provided, against the Statutes such cases made and and peace Oregon.” dignity and of the State defines as follows: aggravated ORS 163.095 murder section, ‘aggravated “As 163.105 and this used ORS murder’ in ORS 163.115 which is means murder as defined under, by, any following accompanied committed circumstances: * *
<c* * % Statutes) (Oregon opinion in this are to the statutes 1 AllORS Revised citations by legislature. prior in the circuit and The case was tried court to amendment they prior argued in this reference to the statutes as existed briefed court with they changes, have are but do not 1987 amendment. reader is warned that there any effect on this decision. interpretation Although susceptible review is to the the text of the statute mandated, argued is man no has that review not Court is not one mandatory. datory, promulgated is assumes that review and the rule that this court has See ORAP 18.05 entitled “AUTOMATIC REVIEW IN DEATH SENTENCE 3(6), 163.150(6) 1985, 3, chapter Oregon Laws section comes from CASES.” ORS 7, by petition, proposed was enacted a vote as Ballot Measure initiative which 893,818 295,988 general on November and became at the election 6,1984. effective December “(2)(a) followingand the The victim was one of the performance of the victim’s murder was related to the system: justice in the official duties * * * *
“(E) proceed- juror in a criminal A or witness ing!.]”3
I. July 3, was returned on The indictment July before the court on arraignment appeared July 22 counsel. He was until 10,1985, appointed granted with that date and appeared He with counsel on plea. to enter a Sep- until reserving right plea guilty, entered a of not mental disease. enter a defense of tember 1 to demur and chal- demur to the indictment counsel defendant did Through provisions under various validity of ORS 163.1054 lenging of the Constitu- States and of the Constitution of United 2, 1986, trial court overruled January Oregon. tion of On the demurrer. personally later defendant moved one week
About an order court for case. It represent myself in the above-entitled
“allowingme to primarily responsible for person I my desire that be the selection, defense, opening including jury conducting my own witnesses, statements, and cross-examination of direct closing argument.” *7 counsel and then-appointed his also moved that
Defendant as lawyer be allowed to serve another I purpose answering questions which “co-counsels for issues, purpose legal as well as for may regarding have necessary my discovery for me materials obtaining for added.) (Emphasis defense.” heard the motion. 14 the trial court January
On to wanting for his desire and reasons Defendant testified to it would ruled that The trial court then represent himself. it is provides murder when criminal homicide constitutes that ORS 163.115 attempted intentionally certain commission of in the commission or committed murder; imposed provides penalties section also felonies. This penalties. death is not one of those punished by aggravated life provides death or murder is to be ORS 163.105 imprisonment. appoint another lawyer to confer with defendant about his decision to represent himself and would rule on the motion defendant, after that had January open occurred. On court and after conferring appointed lawyer, with another repeated his desire to proceed pro se. The court then ruled that it would allow him to do so. The trial court file no contains order allowing represent to himself but does con- tain an order appointing lawyer second Jeffrey Wagner
“to assist Scott in his own defense. Mr. provide McHill is to adviceand counsel to the defendant but is Wagner’s attorney.” not to act as Mr.
That defendant’s motion to act as his own counsel was allowed also from the appears fact that he personally filed at least 12 motions, the great majority of which were allowed. February 10,
On day which was the trial was to commence, defendant informed the court that he desired to plea withdraw his of not guilty and to enter a plea guilty charge aggravated murder. A petition written to do so already had prepared.5 been The court then informed defen- dant that the court would have to ascertain that defendant understood what doing he was rights that he would be foregoing. point defendant, At this open court and in the presence of his lawyer advisers, two signed prepared peti- tion. The court then pointed out that although printed form referred to “talking your lawyer,” with defendant was not represented. The court asked defendant if he had dis- cussed the advisers, matter “in detail” with his and defendant answered that he had done so.
The court then explained to defendant the various rights constitutional forego by he would pleading guilty explain went on to the sentencing proceeding that would jury. occur before a Having satisfied itself that defendant understood what he doing was and that he acting volun- tarily and knowingly, the court once more asked defendant if he plead still wished to guilty, and defendant stated that he did. court then stated: plan
“I do morning provide wait until tomorrow Mr. Wagner opportunity fully again, review this matter so 5 copy petition opinion Appendix petition A follows this A. The is on a *8 printed supplied by printing pen. form with certain additional material with a mind, change in the still event he should his he would So, accept plea I opportunity. going have that to his am morning.”
until tomorrow court, in February open judge On ascertained opportunity had to consult with ample that defendant had your you regarding “the wished to consult with individuals plead guilty. and still to Once plea” that defendant desired the penalty more the court warned defendant would be The then stated imprisonment. prosecutor either death or life prove to the court what evidence the state would offer to transcript. After charge. pages statement covers plead he of defendant whether still wanted to again inquiring possibly receiving to death an guilty and be sentenced affirmative, accepted guilty. plea answer in the court 163.150(1) provides: ORS
“Upon finding guilty aggravated defendant murder, separate sentencing pro- the court shall conduct a ceeding to the defendant be sen- determine whether shall be imprisonment proceeding to or death. The shall tenced life jury trial court the trial as soon as conducted before guilty, pleaded has the sentenc- practicable. the defendant If jury ing proceeding impaneled be conducted shall before may purpose. proceeding, presented evidence be sentence; to how- any the court relevant matter that deems ever, neither nor shall be allowed the state the defendant previously offered repetitive introduce evidence that has been guilt. during The court the trial the issue and received previously jury that all evidence offered shall instruct sentencing purposes received considered for of the be hearing. be construed to authorize This subsection shall not of the the introduction of evidence secured violation Oregon. Constitution of the United States or State the counsel of the defendant The state and the permitted present against for or a sen- arguments shall added.) (Emphasis tence of death.” proceeded to the selec parties thereto the court and Pursuant fully selection. jury. participated Defendant tion of 11, 12, 13, 14, 18 and Jury occupied February voir dire transcript, transcript dire six volumes of of voir covers 1,146 Every was asked about pages. juror some being and if concerning penalty the death attitude or belief juror’s willing the death impose would be juror and sworn. impaneled A case. February 20,21,24 all of in chief took
The state’s case rested, defendant had February after the state On and 25. *9 and, except for statement opening make an right his to waived evi- cross-examination, no presented developed evidence made the Attorney Engdall Deputy District and rested. dence argued, had and after defendant opening argument, state’s closing the state’s Attorney Houchin made Deputy District jury. The court instructed argument. 163.150(2) was required by ORS
A form of verdict jury. provides: to the The statute submitted evidence, presentation of the “Upon conclusion of the jury: following issues to the shall submit the the court “(a) of the defendant Whether the conduct deliber- the deceased was committed caused the death of expectation that death of ately the reasonable and with result; would deceased or another
“(b) probability that the defen- Whether there is a that would commit criminal acts of violence dant would society. determining In continuing threat to constitute a issue, instruct to consider the court shall evidence, including, mitigating circumstances offered to, age, the extent and but not limited the defendant’s severity prior and the of the defendant’s criminal conduct pressure under which extent of the mental and emotional com- acting at the time the offense was the defendant was mitted; and
“ evidence, (c) the conduct of If raised whether killing the deceased was unreasonable the defendant provocation, any, by if the deceased.” response to the issue that the statute respect to the second With as fol- the court instructed jury, be submitted to requires lows: question
“The is: second Jeffrey Wagner would probability that Scott “Is there a con- would constitute a acts of violence that commit criminal question, society? deciding the second tinuing threat to likely an event is more probability means the occurrence of of the defen- event is the chance than to occur. Here the Probability does violence. committing criminal acts of dant is certain. of the event not mean that the occurrence you any mitigat- “In shall determining this issue consider ing including, in evidence but not lim- circumstances received to, severity age, the ited the defendant’s extent and prior criminal conduct and the extent of the men- defendant’s pressure under the defendant tal and emotional which was acting killing time at the committed.
<<* * * * * you you, are considering “In the issues submitted to * * * you in all of the submitted this trial. consider evidence prove beyond upon the State to a reason- “The burden each of submitted able doubt affirmative of the issues * *” * you. presented the jury were as follows: The issues defendant, Jeffrey “1. Was conduct of Scott deceased, Koenig, Jeri A. Wagner, caused the death expectation deliberately with the committed reasonable Koenig of Jeri A. would that death result? *10 defendant, probability Jeffrey Is there a that the “2. Wagner, criminal of violence
Scott would commit acts that society? continuing constitute a threat to would defendant, Jeffrey “3. Was conduct of the Scott deceased, killing Koenig, in A. Wagner, Jeri unreasonable deceased, any, by if Jeri response provocation, in to the A. Koenig?” “yes.” unanimously question
The answered each ORS 163.150(5) provides question that if each is answered affirma- the sentence must be death. tively, days for later and on sentencing
The court set two 28,1986, of death. February orally pronounced sentence Writ- made, filed on the same of death was entered and ten sentence day. and case is before this court on “automatic now court, 163.150(6). pursuant In this both
direct review” to ORS by the represented and oral argument, on brief asks that this court Defender. In the brief defendant Public life with a 30- imprisonment sentence death to modify the of or, plea of alternatively, to vacate defendant’s year minimum6 death, aggravated murder is to the sen convicted not sentenced When one years possibility parole, imprisonment minimum of 30 without with “a tence is life temporary employment any at a leave or forest or release or form of release or work 163.105(1). camp.” ORS work capital and remand the case with guilty murder directions trial appoint represent to the court to counsel to defendant. addition, curiae, by we have a brief to filed allowed be amici Union American Civil Liberties Criminal Defense That brief Lawyers supports posi- Association. defendant’s his conviction should be reversed. tion that The Public subsequently filed a memorandum of Defender additional in asking authorities sentence be modified as sought or, alternatively, plea brief to vacate the guilty defendant’s trial. and remand case for
II. Defendant court claims trial cannot enter- I, plea guilty capital tain a case because of Article Constitution, section of the Oregon provides: which “In prosecutions, all criminal the accused shall have the right public by impartial county trial an in the in which committed; the offense shall been have heard himself counsel; to demand nature and of the cause accusation him, against copy thereof; and to have meet the witnesses face, compulsory process obtaining face to and to have for however, provided, favor; accused witnesses his cases, person, capital in other than and with the consent of judge, may trial byjury to waive elect trial and consent to judge alone, be tried the court such election to be however, writing; provided, that in the circuit court ten mem- jury may guilty guilty, bers render a verdict of except murder, guilty degree save a verdict of of first only by verdict, which shall be found a unanimous and not otherwise; provided further, existing laws and con- provisions prosecutions stitutional relative to criminal shall prosecutions be continued and remain all effect as to taking crimes committed before effect of this amend- *11 added.)7 (Emphasis ment.” correct,
If that claim is that would of this We dispose case. therefore address that claim first. In his brief defendant argues: plea guilty capital
“Defendant’s uncounselled of murder resulting I, are Article sentence void under Section Oregon’s may 11 of providing Constitution that an accused longer degree in There is no a crime of “first this state. murder” by by judge ‘in jury and elect to be other waive trial tried ”8 capital than cases.’
A. support cites law from six other states in Defendant California, Texas, Loui- of this Those states are argument. siana, Jersey. Washington, North Carolina and New of California is reflected in policy
Public the State of plea guilty an where the a statute that forbids uncounselled of charged is either death or punishment maximum for the crime imprisonment possibility parole: of life without provided by every plea must be otherwise law “Unless open by in or the defendant himself court. entered withdrawn felony punish- plea guilty No a which the maximum of of death, possibility without the imprisonment ment is of life a who not parole, shall received does be from defendant counsel, any plea nor received with- appear with shall such be counsel. No guilty out the consent plea of of defendant’s of punishment felony is not death or a for which the maximum possibility parole imprisonment of shall be life without any appear not with coun- accepted from defendant who does fully right inform him of his sel unless the court shall first shall find that the defendant counsel and unless court then, freely right to it and understands his counsel and waives court, only expressly open has stated to the if the defendant court, represented by On he to be counsel. does not wish judgment the application of time before the defendant may, appeared in case a defendant who without court of must, good plea the for a cause at the time of the court counsel shown, plea and a permit plea guilty to be withdrawn Upon or information guilty not substituted. indictment corporation plea guilty may put be counsel. against a liberally objects these be construed to effect This section shall added.) (Emphasis promote justice.” and to Oregon has no statute Ann Cal Penal Code 1018. West’s § Indeed, plain plea guilty capital case. forbidding uncounseled, technically but as discussed It correct that defendant be lawyers stage opinion, part at that of the I had the advice of of this he proceedings. not be noted that defendant’s motion was It should be lawyers appointed represent as “co-counsels.” himself but that two allowed to I, Moreover, plea guilty Article section if a is forbidden Constitution, defendant was counseled. it would matter whether *12 163.150(1) plea guilty capital text of ORS a envisions of in a case. public policy expressed
Texas is also in statute: prosecution “The defendant in a criminal for offense any rights by waive except secured him right law of by jury capital felony trial in a case.” 1.14(a). Vernon’s Ann CCP art decision, In an in banc Appeals Court of Criminal of Texas considered the effect of allowing plea the statute on a defendant’s claim of error in his guilty jury. of guilty plea before a Defendant there contended that his jury equivalent by
to the was the of a waiver of trial jury, by 1.14(a). which was forbidden article The court history statutory reviewed the of Texas’ scheme and held that procedure plea guilty criminal felony statutes that allowed a of to a jury always jury a before had been considered to abe plead guilty trial. Earlier cases had held that defendants could jury before a and be sentenced to death. contended, Defendant procedural however, that amendment of the code should cause 1.14(a) interpreted article to be so as to forbid a defendant to plead guilty jury plea before a because such a amounted to a jury squarely rejected waiver of trial. The court this conten- tion: prior “Consistent with our decisions plea we hold that a of
guilty jury capital before a in a by jury. case constitutes trial jury No waiver [Citations trial is involved in the omitted]. present case.” (Tex 1984). App State, Williamsv. SW2d Cr argues Defendant here that the statute and case law permit by capital of Texas do not waiver of trial cases. accepts This is true if one the idea that a trial occurs pleads guilty jury. regard where a defendant before the We oddity jurisprudential history. as an of Texas We do not regard interpretation being the statute or its beneficial to guilty plea by this defendant’s claim that his was forbidden Constitution. public policy by In Louisiana the is declared statute: “A court shall unqualified plea not receive an guilty in a capital If case. a plea, defendant makes such the court shall plea order guilty of not entered him.” statutory no such Again, 2 C Cr P art 557.9 there is LSA people or policy by legislature Oregon. expression statute: Washington Defendant cites a for a shall person against “No informed or indicted crime thereof, by admitting the truth of the be convicted unless court, open charge plea, by in his confession jury, accepted court: Provided verdict however, and recorded *13 cases, capital person except That in where the represented by against for crime is informed or indicted a court, counsel, person may, with the assent of the waive such by by (Emphasis court.” jury trial and submit to trial original.) Martin, 1, In State v. 94 Wash 2d
West’s RCWA 10.01.060. 164, (1980), P2d 166 the court said: 614 interpreted prohibit to never RCW 10.01.060 a “We have charged capital pleading guilty. defendant with a offensefrom Indeed, supports clause RCW 10.01.060 may, the rule the first of fact, reasoning plead guilty. This that a is defendant by supported 10.49.010 effect 1951 when sec- RCW adopted. RCW 10.49.010 clause of RCW 10.01.060was ond clearly anticipated guilty pleas by charged with defendants provided: murder. It
“ plead jury a guilty charge ‘if a of murder the defendant to impaneled degree . murder shall to . . determine the of be punishment and the therefor.’ ours.) Horner, 278, 150 “(Italics State v. 21 P.2d See Wash.2d (Footnote omitted.) (1944).” 690 a prevent “does not
The court then held that RCW 10.01.060 capital pleading guilty a offense from charged defendant with P2d at 166. charged.” crime with which he or she is 614 9 is Comment” to Article 557 as follows: The “Official Revision “(a) Code Criminal Pro- Art. 262 of 1928 of This article retains from capital receiving plea guilty prohibition against in a case. Accord: a of cedure the (1921) 2A:113-3; Proc., Art. § of 332. Const. § Stat. Ann. N.Y. Code Crim. N.J. only VII, pleas guilty of in cases less than 42 courts to receive § authorizes district capital. 713,60 (1952), “(b) Green, 221 208 stated that La. So.2d The case of State capital accept unqualified plea guilty in a an fact the court could not required accept qualified plea guilty a the court was case did not mean that plea ‘guilty capital punishment. this article the defendant’s Under without attorney, authorized, punishment’ capital of the district with consent without procedure accepted to the the court. This conforms in which it must be case pleads guilty See Art. 558.” a lesser included offense. when a defendant death, The court went on to hold that because sentence of under other sections of Revised Code of Washington, could the same that had imposed guilt, decided could not be a imposed defendant who had pleaded to first murder. guilty degree statutory
This is not at all the same scheme as exists 163.150(1) state; in this plainly provides ORS impaneling jury for the sentencing stage plea of a conviction on a of guilty. upheld
In North Carolina the court
life
sentence of
imprisonment
by a jury
appropriate
found
to be
rather than
Watkins,
death in State v.
cert
800,
den
283 NC
SE2d
(1973).
US
S Ct
“Notwithstanding statutory authority the lack of to sus- Court, promulgated by tain the rule that an will accused permitted plead guilty not be to to a crime for which the penalty death, legislature has not seen change fit to it. It long public policy Indeed, has one accused of a since become the of this State.
capital may finding crime not even waivethe (1965). against of a bill of indictment himself. G.S. 15-140.1 § person The idea that a should be allowed to decree his own unacceptable, only death been judiciary, has to the but to large. supreme the citizens at This State has inflicted the penalty only beyond when a of twelve has been convinced a guilt reasonable doubt of the of the accused after a trial safeguards appropriate pro- with all the to such a conducted ceeding.” 194 SE2d at 809-10. The court then noted that in legislature provided had that a plead guilty defendant could to the state charge degree
a of first murder if both the court and plea to agreed agreed punish- but if it were life The court imposed imprisonment. ment would be then affirmed the judgment: jury’s gave
“The
him the life
he had asked
verdict
sentence
for,
punishment
degree
minimum
for murder in the first
thought
under the law as it was then
to be.”
Apparently policy see legislature change public Carolina did fit codified by the courts and enacted in 1977 a statute as created 15A-2001, provides: G.S. which punisha-
“Any person who has been
for an offense
indicted
may
plea
guilty
after his
ble
enter a
time
indictment,
juris-
superior
having
judge
and the
court
person
imprisonment
life
or to
diction
death
sentence such
procedures
pursuant
to the
of G.S. 15A-2000.Before
defendant,
impanel a
sentencing
presiding judge shall
purpose hearing
determin-
the limited
evidenceand
appropriate
ing a sentence recommendation as to the
sentence
jury’s
pursuant
sentence recommenda-
to G.S. 15A-2000.
pleads guilty
in
shall be deter-
tion
cases where the defendant
applicable
procedure of
mined under the same
G.S. 15A-2000
by jury.”
guilty
a
to defendants who have been tried and found
Johnson,
(1979),
See State v.
The other
*15
plead
claim that one cannot
directed our attention on this
11,
I,
of
by
Article
section
capital
to a
crime
reason of
guilty
High
State v.
Jersey.
He cites
Oregon
Constitution
New
tower,
(1986), a
We conclude that there is in the law of those support states to defendant’s contention that the Constitution Indeed, Oregon plea capital charge. forbids a to a guilty by public policy declared statute some of those states expressly permits pleas. such
B. I, argument Defendant’s that Article section prohibits guilty plea capital Constitution in a case is based on 1932 amendment to that section. Prior to amendment, the 1932 provided: section prosecutions, “In all criminal the accused shall have the by county right public impartial jury trial an in the in which committed; the offense shall have been to be heard himself counsel; to demand the nature and cause of the accusation thereof; him, against copy meet the witnesses and to have a face, compulsory process obtaining face to and to have witnesses in his favor.”
By legislature Joint Resolution the 1931 referred to Senate to add to section 11 a people proposed amendment proviso: however, person, in than
“provided, accused other cases, judge, may capital the trial elect and with consent of by jury judge be tried to waive trial and consent to alone, writing.” the court such election to be 8,1932, the amendment At the election on November general adoption of this clause adopted. Defendant contends capital in a case. power plead guilty a defendant’s abrogated disagree. We
130 of a statute general rule is in absence plead capital it can in a case. As it forbidding guilty one long stated: ago classes, into
“Confessions are divided two reference [with sufficiency in conviction,] namely, judi- to evidence for a their extrajudicial. cial Judicial confessions are those which are and court, magistrate, in before the or in the due course of made legal proceedings; they and it is essential be made of party, perfect knowledge will of the and with full and of free the nature and consequences kind of the confession. Of this examinations, preliminary writing by are taken in statutes; pursuant plea ‘guilty’ to magistrate, and the of made in open court to an indictment. Either of these is sufficient to death, conviction, even if be of found a to followed sentence made, solemnities, deliberately deepest they being under the counsel, protecting advice and the caution and with the of omitted.) (Footnote oversight judge.” 1899). (16th Greenleaf, 216 ed In State v. 1 Evidence § Watkins, 807-08, acknowledged general the court supra, rule: law, competent
“Undoubtedly, at a common duly plead guilty understanding, enlightened, right had the to capital charge. See v. denying to Commonwealth, crime Green a instead of (12 Allen) (1866); 94 155 31 N.C.L. Mass. (1953). Blackstone, upon pris- According 405 to ‘the Rev. nothing hath of the indictment... the court oner’s confession usually very judgment: to but it backward do but award is confession, receiving recording out of tenderness to and such prisoner generally to subject; life and will advise the Blackstone, it, 4 plead to Com- retract and the indictment.’ accept to a noting *324. In the reluctance of courts mentaries death, Bishop plea guilty crime which the is of a case, ‘Thus, capital said, plea] in one a where tendered [this they explained him accept it till had judges would not reflection, nature, his its sent him back to cell for serious court, him brought again him into had the indictment read to time, sanity, his and examined witnesses second clemency made him promises had been whether or not ..., statutory varying are some of the states there [a]nd improvident pleas protect from other devices to defendants (2d 1913). guilty.’ Bishop, 2 New 795 ed. § Criminal Procedure (16th 1899). Greenleaf, 1 ed. also Law of Evidence 216 § See every country today generally held that
“In this
plead guilty
one
do so even
right
has the
accused
Annot.,
capital
prohibited
case unless
6 A.L.R.
statute.
(1920);
(1965);
21 Am. Jur. 2d Criminal Law 484
§
(4)
422(1),
(1961).
Criminal
C.J.S.
See also Fed. R. Crim. P.
§
11, 18
Donnelly
States,
(10th
v.
U.S.C.A.
United
From time to have permit- statutes pleas ted “to an guilty indictment.” General of Oregon, Laws 1866): (Deady Criminal Code are “There three kinds of § * * pleas indictment; plea to an Guilty of: 1. *.” Laws General *17 of Criminal Oregon, (Deady (1874), Code 132 and Lane is the § * ** same. ORS 135.335: “The pleas kinds of to an indictment * * (a) are: Guilty *.” There has been no statute during this excepted time that has from a plea guilty those sections of in a capital case. Harrell,
In Ex Parte
95,
(1910),
57 Or
person capital in and with the consent other than may relinquish right judge, his of of the trial choose by jury by judge of the trial and consent to be tried the alone, writing. such election to be in court I vote for the amendment. “302 Yes. against I
“303 No. vote the amendment. voting following machine ballot title of “The is the 25-word proposed amendment: TRI- “AMENDMENT AUTHORIZING CRIMINAL BY OF JURIES CONSENT ALS WITHOUT - Purpose: persons ACCUSED To accused authorize except capital relinquish right by jury in cases to of trial by by only.” judge, judge consent of and be tried appeared 6 of the page pamphlet argument On con- measure, it was in the affirmative. cerning and “(On Ballot, 303) Nos. and Official (Affirmative)
“ARGUMENT by joint “Submitted committee of the senate and session, representatives, thirty-sixth legisla- of regular house assembly, Authorizing tive in of the behalf Amendment Criminal Trials Juries Consent Without of Accused. purpose proposed
“The of this constitutional amendment cases, permit the in with is to accused criminal of consent judge, by jury by judge the trial to waive trial be tried apply excepting capital This would to trial of alone. offenses. all crimes Although expressly required the wording of amendment, thought it is nevertheless the consent of attorney judge district should be obtained as well that of the may whom the before case be tried. present constitution, requirements “Under compulsory [Emphasis trial is criminal cases. added.] many by judge, are
There cases that be tried and without jury, speedily, economically fully protecting right requirement the accused. The consent accused and obtained, judge suggestion must both be with the that the approval attorney in applying district be secured also measure, carefully assure its considered and reasonable use. provisions many Rights
“Similar are effective states. fully preserved adoption state accused are and the of the in the accomplish saving amendment should a substantial expense time and now incurred criminal trials. Where adopted general its use percentage and the of court trials has large. been kept right by jury,
“It should mind the to waivetrial herein, provided applies only requiring to criminal cases and judge, trial cannot consent oppressively. accused and be used undersigned appointed by “The constitute a committee Speaker President of and the of the House the Senate *19 prepare argument. strongly recommend the enact- this We ment measure. of this CRAWFORD, W. “JAMES Senator, Portland, Oregon
“State BYNON, “ALLAN A. MANNING, “JOHN Portland, Representatives, Oregon” “State sponsor had been the sole the measure Senator Crawford legislature. in the it was introduced leading attempt did not extensive research of We day of the to seek clues to how editors viewed newspapers measure, on but we did check the recommendations ballot On Oregonian and in The Statesman.10 measures made The 7, 1932, in a column entitled “Recommendations November by “Optional found: criminal trial Oregonian,” The we The on 302 Yes.” In Statesman November judges. Vote editorials, under a space usually reserved for in the Measures,” on we this: heading “Recommendations found Authorizing Trials “Amendment Criminal - Juries Consent of Accused Without large might dangerous “This some cities where judiciary corrupt gangsters. under For- control prevail Oregon. adop- tunately not that condition does may expedite trials reduce tion the amendment expense. recommend We X Yes.”
“302 measure, sponsor of the It seems clear that him Voters’ joined presenting House who members amend- Pamphlet regarded and the editors all argument than doing nothing changing ment as more constitutional had to be charge by jury. rule that a trial on criminal I, Article hold that section We aggravated does one accused of prohibit Constitution one so accused pleading guilty; prohibit murder from does contempo newspaper past have editorial comments to seek we consulted PERB, See, e.g., rary understanding 284 Or of a ballot measure. LaGrande/Astoria (1978). 173, 182, P2d 765 waiving from if the accused would be tried charge.11
III. portion A substantial the arguments of of defendant and amici on the hinge I, text and effect of alleged Article sections 15 and of the Oregon The Constitution. state argues that those totally sections are without application to the issues in this case. Those sections provide: punishment “Section 15. Laws for the crime be of shall principles reformation,
founded of and not of vindic- justice. tive “Section 16. required, Excessive bail shall not be nor imposed. punishments excessive fines Cruel unusual shall inflicted, penalties not be proportioned but all shall be to the whatever, offense. In all jury criminal cases shall have the right law, to determine the and the facts under the direction of law, right trial, the Court as and the of new as civil cases.”
Ballot Measures 6 and 7 were proposed by initiative petition to be general voted on at the election on November 1984. Ballot Measure 6 proposed an amendment to the state constitution, which read: by
“Be It People Oregon: Enacted of the State of “Paragraph 1. The Oregon Constitution the State of is by creating amended a new section 40 to be added to and made part a I Article and to read: 40. “Section Notwithstanding sections 15 and 16 of this
Article, penalty aggravated by for murder as defined law upon shall be death jury unanimous findings affirmative as argued cogently plead The guilty state has not this defendant did to a capital charge potential capital charge jury but to a still because must be impaneled sentencing 163.150(1), proceeding entirely for the under ORS possible questions affirmatively that the not answer all three as has occurred already Oregon 163.150(2) aggravated under ORS other cases conviction for murder. guilt accomplish A defendant who is determined not to contest the issue of could purpose quite easily I, his even were we to hold that Article section prohibits making acceptance plea guilty. Constitution The go testify every could to trial and as a witness that he had each and done material act charged accusatory Theoretically, yet in the instrument. him could find guilty, exceedingly improbable. that result but would be provided imprisonment by life with law and otherwise shall be provided by minimum law.” sentence Attorney the measure prepared General ballot title for as follows: AMENDMENT
“CONSTITUTIONAL REQUIRES DEATH OR LIFE IMPRISONMENT FOR AGGRAVATED MURDER “Question: aggravated penalty Shall the murder be death by imprisonment life upon findings jury, and be certain otherwise? Requires that
“Explanation: Amends state constitution. jury makes aggravated murder be death when a findings by a unanimous vote. The facts certain affirmative Requires which must found are to be determined law. minimum term in other cases. The life sentence with a all provided term is law.” minimum to be *21 and being as insufficient proposed challenged This title was Paulus, 295 Or challenge addressed the in Clark v. unfair. We (1983), challenge the P2d 794 where we summarized 669 as follows: challenges or this ballot title as insufficient
“Petitioner argues He ballot title fails unfair several reasons. that this for measure, he is to contends purpose state the of the which I, Oregon 15 of the Constitu- amend Article Sections and 16 title is read argues that when this ballot tion. He further petition companion which conjunction with the initiative penalty statutory require a death the law would amend situations, implies penalty erroneously the death that some category of homi- serious available for limited would be sufficiently cides; close to ballot measure title is that this likely to create companion statutory measure that it for measure confusion; the voters that and it fails to warn unusual, are cruel or permit of execution that might modes omitted.) (Footnote vindictively imposed.” and some other An intervenor made similar 295 Or 675-76. and insufficient proposed ballot title was arguments that unfair. We held: by Attorney prepared agree title “We the ballot purpose not it does disclose is insufficient because General aggra- is, penalty measure; exempting the death for guarantees embodied murder from the constitutional
vated I, See Article Oregon Sections 15 and 16 of the Constitution. Paulus, Hall v. (1982). 292 Or P2d following find caption “We to be fair and sufficient: “ DEATH ‘EXEMPTS SENTENCES FROM CRUEL, CONSTITUTIONAL GUARANTEES AGAINST VINDICTIVE PUNISHMENTS’ adopt petitioner’s proposed question “We with one addi- tion:
“ ‘Question: punishment capital aggravated Shall for exempted Oregon be prohibi- murder from constitutional cruel, against unusual, disproportionate tions and vindic- punishments?’ tive considering explanations “After offered the Attor- General,
ney intervenor, petitioner, we find the intervenor, following, suggested be sufficient fair:
“ I, ‘Amends Constitution. Article section requires punishment the laws for of crime shall principles founded on of reformation and not vindictive justice; I, Article prohibits section 16 cruel and unusual disproportionate punishments. The measure would exempt aggravated requiring murder statutes the death penalty findings unanimous from these constitu- guarantees. imposed, tional Where death was imprisonment would remain as life with a man- datory provided by minimum statute.’ “The entire title ballot will read follows:
“ ‘EXEMPTS DEATH SENTENCES FROM CONSTITUTIONAL GUARANTEES AGAINST
CRUEL, VINDICTIVE PUNISHMENTS “ ‘QUESTION: capital punishment aggra- Shall *22 exempted murder Oregon vated constitutional from prohibitions cruel, unusual, against disproportionate and punishments? vindictive “ ‘EXPLANATION: Amends Oregon Constitution. I, requires punishment Article section 15 that the laws for of crime shall principles be founded on of reformation and justice; I, cruel, prohibits not vindictive Article section 16 unusual, disproportionate punishments. The measure exempt aggravated requiring would murder statutes penalty jury findings from unanimous these con- guarantees. imposed, stitutional Where death was not man- imprisonment with a penalty would remain as life datory provided statute.’ minimum Secretary certify of title as modified the “We the ballot State.”
The on the place the measure for a qualify signatures sufficient No. 6.” Pursuant ballot, designated and was “Measure it an 251.215, provide appointed a committee was ORS former of Secretary The explanation of the measure. “impartial” members, of was the counsel two one whom appointed State Paulus, other supra. Two of the petitioner for in Clark v. proponents chief of the meas- of committee were members for member, Attorney ure, fifth who was the District and the County, by the first four members. appointed Multnomah committee was follows: explanation prepared this The “EXPLANATION one Oregon Constitution contains Rights
“The Bill of punishment of crime for the which states that ‘Laws section reformation, not principles shall be founded on Oregon Bill of provision Another justice.’ vindictive punishments unusual shall Rights that ‘Cruel and states punishments. disproportionate prohibits be inflicted’ and Rights the Bill of adopted, No. 6 would amend “If the Measure things. First would Oregon to do two Constitution aggravated if is a require penalty for murder there death as penalty is effect. If the death jury decision to that unanimous murder, imposed by aggravated not shall be life to be set a minimum sentence imprisonment with by statute. guaran-
“Second, exempt penalty from the the death it would against justice and Rights Bill of vindictive tees in against cruel, punishments. disproportionate unusual “ by statute and can be defined murder’ is ‘Aggravated people.” by a vote of the changed by legislature for the Pamphlet in the Voters’ appeared explanation This immediately following the text in 1984 general election measure. I, excludes section language of Article plain If were not 15 and 16. I, sections of Article
consideration *23 enough, prepared by crystal the ballot title court makes operation clear and effect of section 40 is not to be affected or sections 15 16. modified and argument We shall not consider further defen- depends grounded dant or amici that on contentions in Article I, and sections 15 of the Constitution.
IV. prior Amici defendant contend that to the enact- persons I, 40, all ment of Article section crime convicted of Oregon enjoyed “protection” I, Article sections deprives aggravated 16, and that section 40 those convicted of protection. They argue deprivation murder of that that this protection equal guaran- denies to defendant the of the laws by the teed to him Fourteenth Amendment to the Constitu- They argue right tion of the United States. that a fundamental they identify involved, of defendant is which “funda- as his right being they judi- so, mental to life.” contend, This “strict scrutiny” required. argues hand, cial is theOn other the state judicial scrutiny required that strict is not test that the passing Equal under muster Protection Clause whether is rationally purpose. the section is related to its question law,
This is one of federal for which we look applicable Court of the United States for the provided rules. That court has a test to determine when strict scrutiny required: virtually historically “Texas concedes its dual rooted
system financing education could not withstand the strict judicial scrutiny appropriate this Court has found reviewing legislative judgments that interfere with fundamen- tal rights suspect constitutional or that involve classifica- * * * tions. “This, then, analysis. establishes the framework for our decide, first, system We financing must whether the Texas public operates disadvantage suspect education some impinges upon right explicitly class or a fundamental Constitution, implicitly protected by thereby requiring judicial so, scrutiny. strict judgment If of the District not, Court be should affirmed. If the Texas scheme must still rationally examined determine whether it some furthers legitimate, purpose articulated state and therefore does constitute an invidious discrimination violation Equal Amendment.” Protection Clause of Fourteenth (Footnotes Emphasis added.) omitted. 1, 16-17, 93 Rodriguez, San School District v. Antonio US S (1973). Ct Ed 36 L 2d 17 analysis,
Following indicated method of we first suspect is not directed at a class. note obvious. Section 40 *24 any by age, gender, It not directed to class characterized is creed, origin, and it color, ethnic consideration or national of of deprive anyone protection does not serve to the sections any 15 and 16 of those bases. on argument Even if we assume for the of that the sake satisfy right right, to is a fundamental that does not life “explicitly inquiry right or second unless fundamental the United implicitly protected the Constitution [of we to we have been directed nor do find Neither States].” text right protected that constitution. The and the such to that contrary. law are to The Fifth Amendment case crimes, and recognizes “capital” constitution there are to con both the Fifth the Fourteenth Amendments deprivation process of life without due of law. stitution forbid clearly of imply may deprived that one proscriptions Those Texas, due law. Jurek v. 428 US process life if afforded of In 2950, (1976), Georgia, Ed v. 428 262, Gregg 96 S Ct 49 L 2d 929 (1976), 49 L Ed 2d v. 96 S Ct 859 US Proffitt (1976), Florida, 242, 96 S Ct L Ed 2d 913 428 US 49 to authorize has made it clear that a state choose Court punishment for certain classes of offenses. capital Rodriguez, v. supra, School District
In San Antonio Court, reviewing a number of its earlier decisions after to equal protection, denial of came its concerning claims of point: holding addressing question in now
“The of these cases lesson province to plain. It is not the of this Court before the Court is rights guar- of the name constitutional create substantive Thus, key protection dis- anteeing equal the laws. is not to be found covering is ‘fundamental’ whether education comparisons significance of educa- of the relative societal housing. Nor is it to be found opposed as to subsistence or tion by important right as the education is weighingwhether Rather, is a assessing whether there answer lies travel. guaranteed by the implicitly right explicitly education
141
Baird,
v.
(1972);73
Constitution. Eisenstadt
405
438
U.S.
Blumstein,
Dept.
Dunn
(1972);74
v.
Police
405
U.S. 330
Oklahoma,
Chicago Mosley,
(1972);75
Skinner v.
U.S., (emphasis supplied). The constitutional under *25 pinnings right equal to voting process treatment in the longer can though, no be doubted even as the Court noted Elections, Harper Virginia v. Bd. U.S., 665, 383 at ‘the of right vote in expressly state elections is nowhere men Oregon Mitchell, v. U.S., 135, tioned.’ See 400 at 138-144 229, (DOUGLAS, J.), (BRENNAN, WHITE, 241-242 Carter, MARSHALL, JJ.); Bullock v. U.S., 140-144; 405 at District, v. Kramer Union School 395 U.S. 625-630 Rhodes, (1969); Williams v. 23, 29, (1968); 393 U.S. 30-31 Sims, Reynolds 533, 554-562 (1964); Gray v. Sand U.S. 377 ers, (1963). U.S. 372 379-381 75 Mosley, the Court Chicago struck down a anti- picketing exempted picketing ordinance that labor its from prohibitions. Equal The ordinance was held invalid under the scrutiny subjecting Protection Clause after it to careful finding narrowly that the ordinance not drawn. The appropriately applied stricter standard of review was since the ‘affecting was one ordinance First Amendment interests.’ 408 U.S., 101. at
76 applied scrutiny the standard of close Skinner permitting state law forced sterilization ‘habitual crimi of Implicit opinion recognition nals.’ in the is Court’s the pri right procreation among rights personal the
the vacy of of Wade, protected under the See Roe v. Constitution. 113, 152(1973).” U.S. 33-34, Ct at 36 L Ed at
411 US 93 S 2d 43-44. By people Oregon their constitution the of could not protections Eighth of Amendment Con- lessen extent, any, of States. To the if stitution the United protection formerly provided sections 15 and 16 additional punishments” proscribed by the “cruel and unusual against murderers, Eighth Amendment sections 15 important reflected or deemed to the rights have interests exceeded that people protection but where that Oregon, Amendment, rights those or interests required Eighth rights were not fundamental under federal constitution. operate 40 does not to the disadvan Because section impinge some class and it does not tage suspect because “explicitly implicitly protected by fundamental right States, scrutiny is judicial of the United strict Constitution” required. rationally It to consider whether it is leaves punish purpose. purpose related to its Its obvious is to allow prevent and to ment of death for certain unlawful homicides under 15 and 16. review of death statutes sections simply, state more than Quite people decided Amend percent Eighth margin guarantees charged with protection were sufficient for individuals ment and 16 would not Specifying homicides. that sections 15 such was a those convicted of such homicides apply sentencing way purpose. rational to achieve
V. origin Oregon’s We shall now discuss penalty provisions. is modeled on undisputed
It is that ORS 163.150 *26 in was enacted in 1973 statutory system, which Texas’ L Georgia, S Ct to Furman v. 408 US response (1972). of comparison If it were ORS disputed, Ed 2d 346 37.071, statute, art with Texas Vernon’s Ann CCP 163.150 the soon in and as in would resolve as enacted amended Texas, defendant was convicted dispute. supra, the Jurek by of choking drowning murder and his victim and strangling her in of “committing attempting the course to commit rape” of and on victim. He kidnapping 10-year-old forcible was sentenced to death under the The Texas 1973 statute. affirmed, Court of Criminal Appeals certiorari imposi- Court of the United States decided that system tion the sentence statutory of of death under the 1973 did Eighth not violate the and Fourteenth Amendments of Constitution the United States.
The Texas statute made a possible penalty “capital murder,” which by was defined the penal code as murder with malice aforethought specific five condi- If tions. one were found guilty capital murder, jury the same specified was to address three 37.071(b): issues in article “(1) whether the conduct of the defendant that caused death of the deceased deliberately was committed and with expectation the reasonable that the death of the deceased or result; another would
“(2) probability whether there is a that the defendant would commit criminal acts of violence that would constitute continuing society; threat to
“(3) by evidence, if raised whether the conduct of killing defendant response deceased was unreasonable provocation, any, by to the if the deceased.” If the returned a unanimous finding affirmative on all issues, three required court was to sentence the defendant 37.071(e). to death. Art The judgment conviction and sen- tence of required death were automatically to be reviewed the Court of Appeals Criminal in a period short of time not to days exceed 90 after certification of the record. The charac- terization of the offense as “capital murder” as defined by statute was held to be a satisfactory specifica- alternative to tion statute of aggravating factors or circumstances to be considered at the sentencing stage proceedings. Texas Court Criminal Appeals had construed its statute as allow- ing mitigating consider circumstances address- ing the sufficient, second issue. This was held the Supreme Court of States, the United to satisfy Eighth and Four- teenth Amendments. The Court also held that the second issue described in the statute was so vague as to offend Amendments, those stating: *27 is, course, The easy predict to future behavior. fact of “It difficult, however, is does not mean that such determination Indeed, prediction of future criminal it cannot be made. many of the decisions ren- is an essential element conduct system. The justice decision throughout dered our criminal instance, bail, to for must often to a defendant whether turn on a admit future conduct.
judge’sprediction the defendant’s of per- authority predict must a convicted any sentencing And process in the probable engages when it son’s future conduct For sen- determining punishment impose. to those of what predictions must made prison, these same be tenced to perform in jury must parole The task that a Texas authorities. basically answering statutory question in is no issue thus the day performed times each different the task countless from system justice. is of criminal What throughout the American possible it all relevant essential is that the have before whose fate the individual defendant information about clearly assures that all such evi- must Texas law determine. omitted.) (Footnotes dence will be adduced.” (1) by holding The Court summarized at 274-76. 428 US at least capital requires murder that there be definition of the case before factor in murder statutory aggravating one (2) to considered; opportunity bring the can be death sentence addressing circumstances jury mitigating all before sentencing jury will have ade- second issue ensures (3) function; providing perform its quate guidance to even- promote furnishes a means prompt judicial of review sen- handed, imposition of death rational and consistent tences. imposed the criteria statutory system meets
Oregon’s of on whom persons It the class in Jurek. narrows by the Court between differentiating may imposed by be the death murder, of death permitting sentence murder and aggravated as aggravated heinous crimes defined only in those more is built into the definition aggravating The factor murder. sen be convicted before a defendant must the crime which Having ORS 163.095. may be considered. tence of death even penalty, to the subjected one who identified the same three issues address requires 163.150 ORS Texas court’s adopts even Texas statute and as did the considering jury, its statute interpretation The issues, mitigating evidence. may hear all relevant three highest review the prompt Oregon provides statute also court. state holding Court of the United Texas,
States in Jurek v. Oregon convinces us that the supra, statutory system impervious challenge Eighth under and Fourteenth Amendments the Constitution United States.
VI. urge Both defendant and amici apply I, us to Article section Constitution as a process” “due provides: clause. Section 10 secret, administered,
“No
justice
court shall be
but
shall be
openly
*28
purchase, completely
and without
delay,
and without
every
remedy
and
man shall have
due course of law for
injury
person,
him in
property,
reputation.”
done
his
or
Both amici and defendant concede
require
that this would
us
to “rethink” our most recent decisions
respect.
in this
To
construe section 10
a
process
as due
clause would be to undo
years
almost 10
of this court’s insistence that it is not a due
process clause.
explained
As
in Justice Linde’s concurring
opinion in
Rogers,
219,
Davidson v.
222,
Or
machinery of the law in motion to
already
recover for harm
done to
interest,
one of the stated kinds
guarantee
of
by way
original
dates
King
state constitutions of 1776back to
promise
John’s
in Magna
chapter
Charta
no
40: ‘To
one
”
sell,
will
deny
We
delay,
no one will
right
justice.’
We
or
Linde,
281 Or at
See
223.
also
Without “Due Process”: Uncon-
stitutional
Oregon,
Law in
(1970).
49 Or L Rev 125
See also
Hart,
State v.
299 Or
(1985),
Defendant adds the contention that “this clause course applies of arguments to his [due law] regarding procedures impose used penalty the death admissibility and the during phase.” evidence We do not understand this to add anything to defendant’s specific respect issues, contentions with to those and we answer them elsewhere in this decision.
Neither do the origins of section 10 give basis for * * * be administered com- considering “justice shall process. again, due Once guarantee same as a pletely” is the opinion in David- pointed separate Linde out his Judge be Carta was not to supra, chapter Magna 40 of Rogers, son v. basis for various which afforded the chapter confused with the land” and concerning “law of provisions constitutional process.” “due 10 as invitation to construe section reject
We process due clause. the command of section argues Defendant ** * completely” is vio shall be administered “justice penalty scheme because those words by Oregon’s
lated “remedy from due course something different must mean law” penalty vio- the death
“Ultimately, defendant submits that incompatible with con- it is provision because lates cept complete justice.” point. on this argument is defendant’s entire quotation duly enacted implement the statutes to were 40 and
Section If people of this state. overwhelming majority of by an according to those a trial and sentence defendant received justice is laws, “justice,” for he received applicable other the law. A law itself according judgment given received if believe punishment opponents capital as the unjust, are two differ- be, unjust injustice but law to present our *29 ent things. certainly category of
Additionally, 10 is in the section law, implement- 40 and its of while section general provision govern over that should ing specific provisions are statutes ascendancy the has no over earlier section 10 general. The section 40. later
VII. penalty death Oregon’s that argues Defendant United States of the offends the Constitution “scheme” of pool the class sufficiently to narrow it fails because criminal homicide. may be executed for who persons A. cap- for convicted argues “[e]veryone that
Defendant
because the
eligible to be executed
this state is
ital murder in
synonymous
are
and
‘intentional’
and ‘deliberate’
criteria
phases.”
trial
duplicated
sentencing
in the
and
synonymous
purpose
are not
for the
terms
State
Quinn,
analysis. We
legal
made that clear in
290 Or
(1981), in
Oregon’s
“The distinction between intentional murder deliberate and intentional nondeliberate often fine murder be a one facts, on the legal but the distinction is nevertheless a real one long standing Oregon under law.” Or pointed at 401. We out that at common law under law, earlier Oregon dividing first degree murder from second was degree by providing murder done intent if was accompanied by premeditation deliberation, the murder was first rather degree degree. than second We held that judge “clearly holding: trial correct”
“ ‘In question, order to answer the first consideration must given initially meaning “deliberately.” to the of the word Is deliberately commission a homicide as its same so, intentionally? commission If the Court is bound to find deliberately that this homicide was committed because already specifically has made that decision when found intentionally, that the defendant acted Con- stitution, VII, prohibits Article Section 3 from Court interfering finding jury. my opinion, with this of fact it is deliberately intended the use of the word add deciding another dimension. So in first issue I am inter- preting “deliberately” to mean that must the defendant have *30 weighed question and, killing having and considered the in consequences, to kill. The
mind the
made rational decision
the
test
rather
extent of
of time
true
but
duration
”
reflection.’
n
B. so argues Oregon next has made Defendant “capital pool is not suffi- many murders murders” that Amend- ciently pass Eighth narrowed muster under of the United States. He contends ment to Constitution “26 Oregon impose types law the death in killings.” types aggravated murder. specifies
ORS 163.095 quote We from the state’s brief: (1)
“A murder if: he either aggravated defendant commits murder, money pays or commit ORS receives (2) 163.095(1)(a) (b); been previously he has convicted of manslaughter in the first what would be either murder or degree involves occurred 163.095(1)(c);(3) law, the murder the murder ORS under victims, 163.095(l)(d); (4) multiple ORS maiming in the course of or as a result of intentional 163.095(1)(e);(5) torture, persons murders who and are ORS he system, performing justice in ORS official duties 163.095(2)(a); (6) he he committed the murder while was 163.095(2)(b);(7) explosive custody, he used an com- ORS murder, 163.095(2)(c); (8) personally he ORS mit specifiedfelony, during the murder intentionally committed (9) 163.095(2)(d); conceal a he committed the murder to ORS 163.095(2)(e); (10) crime, he the murder committed ORS institutions, escape from ORS while on certain 163.095(2)(f).” by adding nine the number “26”
Defendant arrives at and the seven types specified in ORS 163.115 felony murder 163.095(2) to ten specified of victims ORS categories This is in ORS 163.095. types aggravated murder contained bar, meaning word of the court instructed the on the In the case at trial 163.150(2) (a) “deliberately” as follows: as used ORS ‘deliberately’ which the act of mind examines “The this case means word contemplated be done. One acts act should or should not whether a
and considers circumstances, state, deliberately under such in such a cool mental when one acts proposed permit weighing period a careful such a of time and for however, law, prescribe particular period of time for does not decision. The deliberation.” instance, overcounting. types” For seven of the “26 could *31 by aggravated reduced to one that a is providing murder performance if the is murder murder related to the of the listing official the rather than justice system victim’s duties in particular specified the seven kinds of now in the victims nine respect listing only statute. same is true with 163.095(2) (d) felonies for the instead of purposes ORS In including listing all felonies. each the narrows instance expands pool. rather than the
Oregon’s aggravated ten kinds of murder narrow the Texas, in pool the manner in approved supra, Jurek v. compares favorably sentencing in number with the 10 aggravating factors Georgia approved of the statute in v. Gregg Georgia, supra, and eight sentencing with the aggravating fac- Florida, of the approved tors Florida statute in v. Proffitt supra. statutory Because is Oregon’s scheme so like that Texas, we think it appropriate quote Jurek the from Court’s language concerning narrowing pool: the adopted statutory
“While Texas aggravat- has a list of ing justify circumstances the existence of can which imposition penalty Georgia Florida, of the death as have in narrowing its action the categories of murders for which a may imposed death sentence be ever serves much the same purpose. California, See McGautha v. 402 U.S. 206 n. 16 (1971); 201.6, 3, pp. Model Penal Code Comment 71-72 § (Tent. 9, 1959). fact, Draft No. the five each of classes of capital encompassed murders made Texas statute Georgia statutory and Florida one or of their more aggravating requires example, circumstances. For the Texas statute stage at guilt-determining to consider particular whether the crime was committed the course of a felony, hire, whether it was committed or whether the for penal defendant was an its commission. of a at inmate institution the time of ante, Gregg 165-166, 9; Georgia, v. at n. Cf. Florida, ante, 248-249, Thus, essence, at n. 6. Proffitt requires Texas statute that the the existence find of a statutory aggravating penalty circumstance before may imposed. aggravating be far as So consideration cir- concerned, therefore, principal cumstances is difference between Texas other is that and the two States the death penalty sentencing option—even poten- is an available tially—for a smaller class of murders in Texas. Otherwise the authority requires sentencing are similar. Each
statutes
particularized
focus on the
nature of the crime.”
270-71,
L Ed
VIII. statutory Both and amici challenge system determining whether the death shall vague used so as to imposed on the basis that the terms are Constitution, I, Article which offend section challenges ex of these prohibits post laws. The substance facto *32 the is to the to determine after delegate jury that the statutes may fact death. Neither chal- punished what conduct be 163.115, which lenge is to the terms of ORS 163.095 murder. aggravated the that is defined as describe conduct is to be Rather, challenges question are to the second that 163.150(2)(b), here under ORS which is presented reader: repeated for the convenience probability is a that the defendant would “Whether there that would constitute a con- commit criminal acts violence * * society tinuing *.” threat to criminal laws must argument first is that Defendant’s public legis of what the “sufficiently be certain to inform the quarrel with We have no prohibit lature intended to or allow.” an attack on the contention; simply applicable is not that in certain terms process for conduct condemned sentencing legislature. “probability,” terms argues that Defendant society” “continuing acts threat “criminal of violence” a Amici make “mind-boggling.” so as to vague are terms be argument. more restrained similar but It is true that “probability.” term We first address the probability or mathematical statistical sense to one may range (impossible) zero something may exist from probability a (sure). possible has anything In that sense less equal a fraction to or expressed existing nothing people pass- than There is to indicate that the 1/1. this meant to use the word in that ing legislation sense. its sense, everyday usage quality the word means the or state of being probable.13 “Probable” is defined in Webster’s New (2d 1961) Dictionary International ed way: Having against; supported by “1. more evidence for than strong enough presumption, evidence to establish but not as, proof, truth; case; probable hypoth- of its to make out a probable; highly probable esis is a conclusion. Rare, Capable Plausible;
“2. Now being proved, spec- b Establishing probability; as, ious. c probable evidence. Likely real; “3. to be logically or become true or such as
actually may may happen; reasonably, certainly, be or but not expected; as, to be ments; probable develop- believed or events or book; probable probable plot author of a or char- acter. Dealing probable; specif.,
“4. with what is realistic. probable today.
“Our Symons. novelists of A. - - “Syn. Unlikely, See LIKELY. improbable, Ant. doubt- ful.”
The trial judge understood this to be the sense in which the employs statute the word when he instructed the as fol- lows:
“In deciding question, probability second means likely occurrence of an event is more than not to occur. Here the event is the chance of the defendant committing criminal acts of violence.” concept
When the of probability circumscribed, is so it is not vulnerable to attack on the basis it is vague pass too constitutional muster. As defendant acknowledges: *33 question
“The second penalty of the death in statute Texas is 13“Probability” in other than the mathematical sense is defined in Webster’s New (2d 1961): Dictionary International ed Quality being probable; true, ground presuming; “1. or state of reasonable real, likely occur; likelihood; narrowly, proof or to more a conclusion that is not logically available; as, reports but follows from such evidence as is devoid of all
probability; probability guilt. to establish of probability radically “But their notions of were different from ours.
J.A. Froude. appears probable; something probably real, likely “2. which is That or true or or happen; as, probability; daily flights probabilities.” to his visit is a are within the 152 Oregon
identical to that of our statute. Neither v. Jurek Supreme majority in majority the Court nor the State, (Tex 1975), any problem App 522 934 Cr SW2d had question unconstitutionally suggestion this with the make clear the vague the state court dissents [but question unconstitutionally vague.]” is quotes length Defendant at some from those dissents. We they argue them; have from the mathematical or statis- read concept agree probability; do of we not them.14 tical with violence,”
As to the words “criminal acts of defen- questions: argument little dant’s is more than rhetorical phrase mean? Does it include misde- “What does violence, psychological harassing such as tele- meanors phone jury person calls? Shall a sentence a to death because may punch jury that in the future the believes defining degree someone the nose? Without violence consider, free to that the must statute leaves any type of future violence is sufficient to cause a decide person to die.” questions to follows these with citation an offer
Defendant proof Washington court which in a State of trial a witness (according leading defendant, in the “one authorities States”) prob- predictions of United stated that violence are specific of violence. Defendant’s lematical absent argument definition “any leading author- future violence” ity’s pertinent want of are not statement about the definition speaks Oregon violence; statute, for it “criminal” to the “any to meet the statute.15 violence” will suffice society” “continuing
Defendant’s attack on threat nothing being vague too is more than the bald assertion prediction “incomprehensible,” apparently kind that this Psychiatric excerpt Association, an from because of American 14 opined they dissenting judges vagueness that the which found inherent Both process statutory text the statute under due clause the Fourteenth invalidated Court of the of the Constitution of United States. The Amendment Texas, disagreed. 49 929 Jurek v. 96 S L Ed 2d US Ct United States (1976). David, (La quotes length State So2d Defendant also some from 1984), aggravating has “a held that defendant the court factor which satisfy activity” vague significant prior history was too constitution. of criminal point, disagree agree for that with that court is beside we would or would Whether phrase with which we deal under the statute. is not the
153 (3d 1980), ed of Disorders and Statistical Manual Diagnostic (defendant 26 at being after 30 age is asserted that in which it criminality “may” trial) kinds of flagrant” “more time of diminish. operates. the issue “society” in what question
Amici unless meaningless is question that They argue seem to thereof, part or a society large it is knows whether is question in setting that is to be the which prison, such as says, statute that the answer is what the conclude posed. We the universe of “society,” no matter whether namely small. society great be
IX. vague that the statutes are urge Defendant and amici is of future acts of criminal violence because the commission certainty or any degree with of susceptible prediction on whether this can be Insofar as this is an attack accuracy. that claim. As all, they authority cite no to sustain proven at Jurek, this of the United States said Court make parole boards judges flies in the face of the fact every day throughout the land. predictions such expert opinion evidence Their true attack is of large majority received on this issue because should not be psychologists practitioners believe psychiatrists faulty at least two- predictions those fields believe such to be not in They array cite an of studies that are thirds of the time. claim. There is no in this case to buttress the record studies and their conclu- testimony in the record that those answer, In cites other studies and sions are valid. the state that a sizeable of those cited show critiques predictions that such body thought among experts exists psychologists are bet- psychiatrists can be made and that making predictions. than others in such ter versed arise before. In Bales v. had this kind of issue We have SAIF, (1982), that a P2d we made it clear 294 Or of medical conflicting of two schools decision as to which law; question it is a question correct is not a thought evidentiary form the by presenting proper fact to be decided in that The decision made to the finder of fact. various views the courts or the binding is not and on that record case the issue. In other present in later cases that finders of fact words, rule such a decision does not establish a of law. We also opinion expert necessarily of an observed that should not given weight just less a finder of fact because witness espouses minority profession.16 of a the view his Bend 585-87, Revenue, Department Millwork v. 285 Or (1979), explained, P2d 986 we connection with the use of *35 part record, not a the appraisal manuals that had been made of his made discharge that factfinder must task on record particular case and that the found on the record and facts of law applied evidence in one case do not become a rule to be in the of facts on and other determination another record evidence. prediction and articles of
The studies about future that have us dangerousness defendant would consider now in this and are not in the record jury were not before case speculation be us to pure before us. It would consider that opinions rely of would the studies and those who them contrary impervious be to vitiation cross-examination or we know this is from the briefs filed in evidence. All about this case, opinion there is a of as to namely, difference American validity and the of position of those studies Association.17 Psychiatric to
We decline hold on record ORS 163.150 is 16 SAIF, 224, 235, (1982), In 294 Or we a footnote Bales v. P2d 300 set forth pertinent that is also here: may today; yesterday laughing “The truth of well be the stock of medical may today’s History us truth likewise tomorrow. teaches medical be treated years ago, practice majority vast and in the universities of doctors 100 both wrong, hospitals, Ignaz Phillipp Dr. believed Semmelweis not to be but and sane, ought probably completely simply because he insisted that a doctor to delivering baby watery lime his with a of of before wash hands solution chloride dissecting engaged activity just if the been or other doctor had cadaver some
that had
the doctor’s hands to become unclean. Semmelweis’ observations
caused
puerperal
high
of
fever
whose babies were delivered
of
incidence
mothers
clothing were
led him
with the
whose hands and
unclean
assistance
doctors
causal
the lack of
and the
believe there was a
connection between
cleanliness
M.D.,
See, e.g.,
ensuing
Magyar’ by
Slaughter,
G.
1950.
‘Immortal
Prank
fever.
eventually
why
right,
Joseph
explain
Lister
Semmelweis was
work of
minority
right
he
when he was a
little more than one.
field
but was
even
history
science, today’s
truth
to be false. Consider
tomorrow shown
Galileo,
Keppler
planetary
on the
revolution. Were Johannes
views of
earth,
hand,
sun
around the
on the other
those who believed the
revolved
one
hand,
or
majority,
minority, in
time?”
who in the
correct? Who were in the
recently
predictability
“dangerous”
quite
spoken
criminal activ
We have
429-431,
(1986).
418,
Huntley,
ity.
Some of the
X.
argue
Defendant and amici
that the three issues to be
163.150(2)
presented
jury
to the
under ORS
make the death
penalty mandatory,
making
insulate the
from
the deci-
imprisonment
preclude
sion for death or life
from
considering
mitigating
argu-
some
circumstances. Aside from
Oregon
I,
ments based on Article
sections 10 and
of the
Constitution, which we shall not address for reasons stated
supra,
apparently rely
I,
defendant and amici
on Article
sec-
provides:
Constitution,
tion
which
passedgranting any
“Nolawshallbe
citizenor classof
privileges,
upon
immunities, which,
citizens
the same
equallybelong
terms,shallnot
to all citizens.”18
respect
persons
In this
all that section 20 demands is that
legislatively-defined
equally.
within a
State v.
class be treated
See
*36
(1981).
Clark,
231,240,
291 Or
A.
Georgia, supra,
After the decision in Furman v.
North
attempted
Carolina and Louisiana
to avoid the randomness
by passing mandatory
penalty
there condemned
death
stat
Carolina,
280,
2978,
utes. Woodsonv. North
428 US
96 S Ct
(1976),
Supreme
was not so vulnerable. The three
to
consider,
light
particular
in
of information about the
defen-
particular crime,
only why
and
a death sentence
dant
“not
imposed,
why
should be
but also
it should not.”
B. argues Defendant that a remark prosecutor Engdall opening argument jury jury to the told the that it responsible imposition penalty was not for the of the death thereby insulated the jury responsibility from its vio Mississippi, lation of the rule laid down in Caldwell v. 472 US (1985). 320, 105 2633, 86 S Ct L Ed 2d 231 Because this is not statute, delay addressing we shall it until facial attack on the specific we come to errors claimed to have occurred on trial of this case. Caldwell,
Amici, then the effect of Arti- noting argue I, Constitution, cle sections 10 which we decided have no here. The rest of the bearing argument have Jurek, devoted to criticism of the decision but the decision, has not Court of the United States overruled found in upheld procedure Oregon’s which now statute. certainly the face the statute nothing There is jury responsible it is not for a decision suggest imposed. will be
C. that ORS 163.150 does argue Defendant amici to consider all evidence. We mitigating not allow the There are three to be answered disagree. questions 163.150(l)(b). the three issues identified in ORS resolving The statute commands: presented [sentencing] proceeding, “In evidence sentence; deems relevant matter court
* * * 163.150(l)(a). silent, obviously, were Even if the statute ORS right to introduce either defendant or the state would have any of the relevant to the resolution of all or any evidence resolution of the three jury’s three which frame questions that a defendant shall construe the statute to mean issues. We permitted any be competent to introduce evidence relevant to mitigation of the three issues.
The statute before the Court of the United Texas, supra, Jurek States was Vernon’s Ann CCP art. 37.071(b)(2), which provided for submission the jury to issue probability
“whether there is a defendant would com- mit criminal acts of violence that would constitute a continu- * * ing society; threat
The Court noted that the state court interpreted had its stat- ute the presentation to allow for of any evidence a mitigating present. desired to In light of that interpretation, the Court upheld constitutionality of the Texas scheme of capital punishment. the court held
Exactly what open differing State, Jurek v. 522 SW2d interpretations. In (Tex App Cr 1975), part of the opinion concerning jury discretion resolving presented the issues by the Texas scheme was as follows: reject appellant’s 37.071(b),
“We contention that Article supra, vague provide adequate is too guidance jury. to the precise The fact that an exhaustive and list of factors is not specifically included jury does not indicate that the is without adequate guidelines. We are inclined to believe that the fac- tors which determine whether the sentence of death is an appropriate penalty particular complex case are too to be compressed simple However, within the limits of a formula. there readily apparent are some factors which are and are jury’s viable factors determining for the consideration. continuing likelihood that the defendant would be a threat society, could consider whether the defendant had a significant range criminal record. It could consider the severity prior of his criminal conduct. It could further look to age of the defendant and whether or not at the time of the commission of the acting offense he was under duress under the domination of another. It could also consider whether the defendant was under an extreme form of mental or emotional pressure, less, something insanity, perhaps, than but more man, inflamed, average than the emotions of the however (Footnote omitted.) could withstand.” Id. question 939-40. The second to be to the presented *38 to the presented the same as that the Texas scheme was
under 163.150(1)(b)(B). question under ORS as the second jury Texas, stated that that supra, the Court In Jurek v. inter- “indicated” that it would Texas court had language the bring allow a defendant so as to pret question this second circumstances a mitigating whatever the attention jury’s Court to show. In a footnote the might be able the first and yet had not construed that the Texas court noted not determined whether or and therefore had questions third questions properly of those would jury’s not the consideration In affirm- mitigating circumstances. consideration include decision, therefore, Court of Supreme court’s ing the state had been a statute that had before the United States mitigating circumstances to allow consideration construed seem, first This would at question. to the second respect with passed Texas statute blush, least, holding at to be Fourteenth Eighth under muster constitutional mitigating to consider if the were allowed Amendments answering question. the second circumstances the Court hand, language some the other On constitutionality, require, predicate interpreted be with circumstances mitigating is to consider stated: questions. The Court respect to all three “Thus, constitutionality procedures turns on of the Texas par- questions allowconsideration the enumerated whether ticularized
mitigating factors.” noted that the first Court In the same footnote could com- some situations” in “at least questions and third 2956, 49 L 272, 96 Ct at 428 US at S inquiry. such an prehend Ed 2d at 938. Ohio, in Lockett v. that the decision argues
Defendant (1978), in conflict 2954, L 2d 973 is 57 Ed 98 S Ct 438 US that under in Lockett concluded The Court with Jurek. aggravated guilty found statute, a defendant was once Ohio circumstance, specified aggravating at least one murder with unless, considering ‘the imposed must “the death history, char- and the of the offense and circumstances nature offender,’ sentencing judge acter, of the and condition following mitigating cir- at least one of determines that of the evidence: by preponderance is established cumstances “ ‘(1) The victim induced of the offense or facilitated it.
“ ‘(2) unlikely It is that the offense would have been committed, but for the fact offender was under duress, coercion, strong provocation. “ ‘(3) primarily product The offense was psychosis deficiency, though offender’s or mental such condition insanity.’ insufficient to establish the defense of ” at 98 Ct L US S 57 Ed 2d at 991-92. The Court held that the three listed mitigating circumstances *39 by could be considered the sentencer were as to so limited make the Ohio statute and incompatible Eighth with the Fourteenth Amendments the to Constitution of the United States. requirements,
“To meet
penalty
constitutional
statute
preclude
mitigating
must not
tors.”
consideration of relevant
fac-
438
at 608,
2967,
US
schemes is obvious. To the in argument the decision Jurek, Lockett in overrules that Supreme we answer that the Court of the United States did not that is In plain believe so. words the pains Court was at proposition: state that permit
“The Ohio death type statute does of individualized mitigating consideration of factors we now required by to be Eighth hold ments and Fourteenth Amend- in capital cases. Its can constitutional infirmities best comparing upheld understood with the statutes in Gregg,Proffitt, Jurek. “In in upholding Georgia Gregg, statute Justices Stew-
art, Powell,
permitted
and Stevens noted that the statute
any aggravating
mitigating
‘to consider
or
circum-
stances,’ Gregg, US,
859,
206[,
see
428
at
49 L
2d
96
Ed
S Ct
2909,]
approved
Georgia
and that the
Court had
‘open
id.,
far-ranging argument’
presentence hearings,
859,
203[,
Although
at
49 L Ed 2d
96 S Ct
the Florida
2909].
approved
mitigating
statute
factors,
contained a list of
Proffitt
assumed,
approving
six Members of this Court
statute,
range mitigating
factors listed
the stat-
ute was not exclusive. Jurek involved a Texas statute which
US,
explicit
mitigating
made no
reference
factors.
at
428
Rather,
929,
272[, 49 L Ed 2d
S Ct 2950].
questions in the
sentencing process,
three
required
to answer
probability that
which was ‘whether
there is a
the second of
violence that
commit criminal acts of
defendant would
society.’ Tex
continuing
Code
threat
would constitute a
US,
37.071(b)
1975-1976);
Proc,
see 428
at
(Supp
Art
Crim
The statute survived
2d
96 S Ct
269[, 49 L Ed
2950].
attack
Eighth
Amendment
and Fourteenth
petitioner’s
Court
that the Texas
Justices concluded
because three
ques
broadly interpreted the second
Appeals had
Criminal
permit the sen
narrowness—so as to
tion—despite its facial
mitigating circumstances’
‘whatever
tencer to consider
Id.,
272-273[, 49 L Ed 2d
might
show.
be able to
at
Stevens,
Stewart, Powell,
(opinion of
D.
Eddings Oklahoma,
104,
v.
455 US
The dissents cite
(1982), vitiating
in
869,
as
the decision
S
history,” “beatings by father,” and “severe a harsh having problems” “been raised in with connected emotional family Despite background.” neglectful, fact even violent dissent in in Justice Linde’s cited that certain commentators vitality question Jurek because the continued this case Eddings, nothing Court that the find to indicate we agreement those commen- with States is in of the United tators.
161 do not construe our statute to exclude We evidence of the kind factors Eddings. mentioned in quote Carolina, v. Skipper
The dissents from South 1669, (1986). 1, 476 106 S Ct L Ed 2d quoted US 90 1 The no than language does more to rule that a defendant must be show mitigating any aspect allowed to as a factor of his char- any acter or record and of the circumstances of the offense that the defendant a basis proffers as for a sentence than less words, death. In other sentencer must allowed to con- sider mitigating relevant evidence. That is what our stat- ute allows. Dugger,
The dissents cite US Hitchcock 481 (1987). case, S Ct 95 L Ed 2d arising In that law, under not Florida the trial judge instructed consider evidence specifically circumstances not mitigating respondent enumerated the Florida statute. The asserted had, that the Florida Supreme postdating Court a decision the petitioner’s conviction, held that sentencer not limited to consideration of the statutory mitigating circum- stances. The Court held that because the record disclosed that the trial judge the case had before Court assumed statute limited the evidence had that could be received and so it, petitioner limited was entitled to a new resentencing or a lesser proceeding sentence.
We discover in Hitchcock that is in nothing conflict with the decision in apply Oregon Jurek or that would to the scheme. Shuman, also dissents cite Sumner v. 483 US
_, (1987). Ct L 107 S 97 Ed 2d cites Justice Linde the case “to show the must point decisive the sentencer not admit merely statutory evidence but consider ‘non miti- ” rule, gating no with quarrel circumstances.’ We have contrary. and we conclude the scheme is not to the We read the impliedly criticizing decision as even the decision fact, in Jurek. In reaffirmed that impliedly Court decision. Language throughout attests to the fact that the decision Court, distinguished commentators, from does not view holding being questionable: in Jurek as opinions addressing Court’s
“The the constitu- *41 tionality post-Furman of five state statutes did much to clar- ify capital- met to a what standards must be render
162 why facially explaining In constitutional.
punishment statute
Florida,
Georgia,
and Texas
of
guided-discretion statutes
the
valid,
mandatory
North Car
facially
of
but the
statutes
were
not,
significant
the Court relied to a
were
olina and Louisiana
penalty and the
unique
death
the
nature
the
degree on
Eighth
reliability
Amendment
the
heightened
demanded
appropriate
is
the
whether
in the determination
U.S.,
189-195,
Georgia,
Gregg
428
at
v.
particular case. See
in a
STEWART,
850,
(opinion
96
Ct 2909
L Ed 2d
S
49
Florida,
STEVENS, JJ.);
v.
U.S.
428
POWELL
Proffitt
(same);
913,
Jurek v.
242, 252-253,
Ct 2960
49 L Ed 2d
96 S
929,
262, 271-272,
Texas,
S Ct 2950
49 L Ed 2d
96
428 U.S.
303-305,
Carolina,
U.S.,
(same);
428
at
49
v. North
Woodson
944,
(plurality opinion); Roberts
L Ed
2978
2d
96 S Ct
333-335,
(Stanislaus)
Louisiana,
U.S.,
L49 Ed 2d
428
at
v.
opinions
974,
principal
opinion). The
(plurality
483
483
107
at
483 US holdings affirming very language recent see Gregg, Jurek.19 Proffitt Texas, 38, 46, 448 US 100 S Ct
In Adams v. (1980), stated what it L 2d the Court 65 Ed the effect of Jurek on the role of the thought to be statutory answering questions: pre- whether the evidence in Texas must determine “[J]urors beyond them reasonable doubt sented the State convinces questions put to them must be answered that each three so, they in the doing must both consider affirmative. circumstances, mitigating appearing whether aggravating and presented guilt at the trial or innocence the evidence during sentencing proceedings. Jurors will charac- teristically questions know that affirmative answers to *43 imposition penalty, the in the of death will result automatic State, (Tex 293, 1975), v. App. Crim. Hovila S.W.2d 294 532 by peti- jurors challenged of the whose exclusion is and each essence, juries be Texas must tioner was so informed. ‘on the basis all relevant evidence not allowed consider of why only why imposed, a but also death sentence should Texas, 262, 271 imposed.’ Jurek v. should not be 428 U.S. (1976) STEWART, POWELL, STEVENS, (opinion of and science, process jurors under JJ.). This not an exact and the unavoidably range procedure exercise a the Texas bifurcated remaining judgment and discretion while true to their of added.) and oaths.” instructions their (Emphasis of the Court and was opinion White delivered the Justice Stewart, Blackmun, and Brennan, Powell by Justices joined dissenter, Rehnquist, disap did not lone Justice Stevens. The indeed, in the he reaffirmed his belief prove language; of this 2530-31, 53-54, 100 Ct at 65 L 448 at S decision Jurek. US 2dEd at 594-95. 1988, January 13, Supreme the
In a case decided its has affirmed conclusion again of the United States Court by to the the Texas questions presented jury the three 19 Supreme granted the a writ of certiorari The Court of United States has (1987). Lynaugh, _US_, L 2d We Franklin v. 108 S Ct Ed 180 jury granted must be the writ was is “whether the understand the issue which capital punishment mitigating of evidence under the Texas instructed on effect scheme, question Oregon’s for ORS The answer to that cannot affect scheme.” it, 163.150(l)(b)(B), requires such instruction. as we here construe Jurek, interpreted by statute Court the state court, sufficiently provided for the discretion guided of the The case is jury. Phelps,_US_, 108 S Ct Lowenfield (1988). case, 98 L corpus Ed 2d 568 In this federal habeas (defendant among things, petitioner other in the underly- case) ing criminal statute failed argued Louisiana sufficiently pool potential recipients to narrow the penalty. death Court of the United States said:
“The use
‘aggravating
circumstances’
is not an end in
itself,
genuinely narrowing
but a means of
the class of death-
eligible persons
thereby
jury’s
channeling
discretion.
why
narrowing
We see no reason
this
function
not be
performed by jury findings
sentencing phase
at either the
Texas,
in Jurek v.
guilt phase.
opinion
trial
or the
Our
(1976),
The Jurek Court
point.
U.S.
establishes
statute, which,
upheld
the Texas death
like the Loui-
statute, narrowly
siana
categories
defined the
of murders for
imposed.
jury
a death
which
sentence could be
If the
found the
murder,
guilty
required
defendant
impose
of such
it was
long
beyond
so
as it found
doubt
reasonable
that the
deliberate,
defendant’s
proba-
acts were
would
bly
and,
continuing
constitute
if
society,
threat
raised
evidence,
the defendant’s acts were an unreasonable
Id.,
response
provocation.
at 269. We con-
to the victim’s
cluded that the latter three elements
allowed
to con-
mitigating aspects
sider the
and the unique
crime
perpetrator,
sufficiently
characteristics
therefore
Id.,
provided
discretion.
(Emphasis
at 271-274.”
added.)
_US
at_,
108 S Ct
“(In sentencing answering questions affirmatively, the three dissent, just ignore emphasized. his we have Justice Gillette seems to the text mitigat- aggravating and both
jurors in Texas ‘must consider
circumstances,
pre-
appearing in the evidence
whether
ing
during the
guilt or innocence or
the trial on
sented at
added.)
(Emphasis
sentencing proceedings.’)”
at_n
_US
at 589 n 4.
n
98 L Ed 2d
4,
Our review of States Court of the United the conclusion in Jurek if presented as that a scheme such uphold will rele- all evidence competent to consider is allowed sentencer 163.150(1) ORS questions presented. three any of the vant rele- any evidence for the introduction provides specifically above, and, noted even as we have questions, three vant to the so, competent evidence relevant and did not do if the statute of fact. to the trier any presented issue admissible on E. 163.150(l)(b)(B) the trial that ORS argued
It is jury prohibited thereto to the pursuant instructions court’s all respect to factors with considering mitigating from provides: the statute will be recalled questions. It three [probability that defendant would determining “In this issue constitute a con- violence that would criminal acts of commit jury to society] shall instruct the the court tinuing threat evidence, circumstances offered any mitigating consider to, age, limited the extent the defendant’s including, but not prior conduct and severity criminal of the defendant’s pressure under which the emotional the mental and extent of committed; acting at the time the offense was was * * * jury: statute, the trial court instructed
Pursuant [probability that defendant determining “In this issue would constitute violence that criminal acts of would commit mitigat- society] you shall consider continuing threat to lim- including, but not received evidence ing circumstances severity of the to, age, the extent and ited the defendant’s men- extent of the prior conduct and the criminal defendant’s the defendant pressure under which emotional tal and killing was committed.” ácting the time the forbade the instruction statute or the in either the Nothing jury’s in the circumstances mitigating considering from Indeed, the court’s questions. other two consideration *45 instructions commanded the to consider all of the evi- dence in performing its task:
“In deciding you, you the issues before are to consider all you worthy evidence that your duty find belief. It is to weigh calmly dispassionately evidence and to decide * * * upon this case its merits.
* * * * “You have the responsibility sole to determine what testi- mony portions testimony, you rely upon will or will not your in reaching verdict.”
We consider that it would be the practice better the trial court to instruct the jury with particularity that it is to consider mitigating respect evidence with arriving at its answer questions, to all three but that does not mean that there was error committed in this trial for failure to do so. There was no request for such an instruction. A search of the record does not reveal any evidence that would tend to show mitigation with respect to answering the first ques and third tions. A court is not required give abstract instructions.
Nothing the Oregon statute inor the trial of this prevented case consideration any mitigating circumstances or factors with respect any of the three questions.
XI. Defendant and amici assert that Oregon’s death penalty scheme is unconstitutional in light of Article VII (Amended), section of the Oregon Constitution because this court has construed that apply section to to criminal actions and, therefore, there can be no meaningful appellate review of a jury’s decision to impose the death penalty. That section was proposed by petition initiative and adopted by vote of the people in 1910. It originally provided: law, “In actions controversy where the value in shall twenty dollars,
exceed served, right of trial pre shall be by jury and no fact tried shall be otherwise re-exam ined in state, court of this unless the court can affirmatively say there support is no evidence to the verdict. * * *”21
21This section was amended in 1974 to raise the $20 $200. sum of
At time of law political people, action provided: proceedings by person punished
“The which a tried in this as a for the commission of a crime is known Code criminal action.” *46 statutory had been the law Oregon
Lord’s Laws 1374. That § from the outset of statehood.22 case, this the term early
In an court construed law” Criminal part “action at as used in of the Code of concerning proceed- Procedure offenses to include gambling ings by initiated indictment: misapprehended mean- think counsel have
“We section, law’ ing thought ‘action at of this and words law, necessary sig- civil but such is meant action proceeding by is an A indictment nification these words. at law.” action Evans, Carr, 134, 136 (1876). State Oregon v. 98
State
v.
Or
6
(1920), however,
1062,
P
P
held that
214,
Or
192
193
927
(Amended),
3,
to a criminal
apply
section
did not
Article VII
State
although
(citing
it was an action at law
action because
Carr,
supra),
v.
an action where the value in
it was not
holding by
The
at this
controversy
exceeded
court arrived
$20.
liberty.”
man’s
98
placed
that “no value can be
on a
reasoning
reasoning as
application
of that
did
question
Or at 223. We
al.,
669,
et
651,
869,
P
in State v. Burke
126 Or
269
court
(1928),
said:
P
where this court
270
756
provides:
“The
law of this state
fundamental
“
by
preserved,
no
right
jury shall be
and
‘The
of trial
by jury
tried
shall be otherwise re-examined
fact
affirmatively say
can
unless the court
court of this state
Const.,
support
the verdict.’ Or.
is
evidence to
there
no
VII,
Art.
3c.§
statement,
definite and
plain
is
“That command
applies
civil
meaning,
alike to criminal and
certain
Friddles,
(123
904); State
v.
State
62
209
Pac.
Or.
causes:
Hill,
Hardin,
v.
(127
789);
State
Or.
63
Defendant that unless we overrule those cases by holding that section 3 does not apply cases, to criminal we shall not be able to afford meaningful judicial review as required by the federal constitution, i.e., we shall not be able prevent “to injustice correct resulting from by mistakes juries.” arguments These assume that judicial review man dated the decisions of Court of the United States requires that appellate power courts have to review and do review the facts necessarily found juries in convicting *47 and sentencing. words, In other they argue that we should novo, review de or anew, record, on the if pro this were a in ceeding equity. Nothing has been cited to us nor do we find any authority for that argument. We conclude from the deci sions of the Supreme Court that our review must be to deter mine whether there was evidence from which the could have found affirmative answers questions to all three and whether the acted according to the law.
Defendant argues that requires ORS 138.050 that we conduct substantive sentence review. An argument might have been made to that prior effect to 1985 amendments when provided statute for sentence review appel- and directed late courts to consider the “nature background and of the offender or the facts and circumstances of the offense.” The 1985 amendments however, deleted that language, and provides: statute now “If in judgment appellate of the punishment court the
imposed does not exceed by the maximum sentence allowable law or unconstitutionally unusual, appellate cruel and court shall direct appeal the court from which is taken to impose punishment which should be administered.” in this
Essentially, that is the review that we have undertaken by I, Oregon section case as circumscribed Article interpreted and the Amendment as Eighth Constitution Court of the United States. Supreme 163.150(6), providing Amici that ORS for auto- argue court, 138.050 matic and direct review overrides ORS nothing have found in requires substantive review. We legislative history suggest the text of ORS 163.150 or its per- our scope substituting of our review reaches to jury. of the effect the evidence for that of the ception in presented compilation has of results Defendant accept compila- cases. We earlier value, this or at face but those cases did not arise under tion com- they governors similar statutes. Insofar as show that sentences, the constitu- muted some death that is irrelevant us. As the Court of the arguments tional now before lately United States observed: hand, showing Georgia
“On the other absent a that the arbitrary in capital punishment system operates an manner, McCleskey prove capricious cannot a constitutional may by demonstrating violation that other defendants who Gregg, penalty. In similarly did not receive the death situated opportunities argument ‘the for confronted the the Court any processing discretionary inherent action that are law,’ Gregg Georgia, supra, Georgia under murder case U.S., S.Ct., 199, 96 specifically L at 49 Ed 2d leniency, capital opportunities discretionary rendered the capricious. rejected this imposed arbitrary We sentences contention: “ discretionary stages these is not deter- ‘The existence of stages us. At each of these an
minative of the issues before justice system makes a decision actor the criminal as a which remove a defendant from consideration Furman, contrast, penalty. dealt candidate for the death spe- impose on a the death sentence with the decision capital had been convicted of cific individual who suggests Nothing cases of our offense. *48 mercy violates an individual defendant decision to afford that, to mini- Furman held order the Constitution. penalty imposed on a would be mize the risk that the death offenders, group the decision capriciously selected so that the sen- impose guided it had to be standards particularized cir- authority focus on the tencing would Ibid. the crime and the defendant.’ cumstances of imposed under Geor- McCleskey’s sentence “Because sentencing partic- ‘onthe discretion procedures that focus gia particularized crime and the nature ularized id., 206, defendant,’ at of the individual characteristics 859, lawfullymay presume we S.Ct., L Ed 2d at ‘wantonly and was not McCleskey’s death sentence S.Ct., id., 49 L Ed 2d at freakishly’ imposed, 859, disproportionate within is not that the sentence and thus Eighth Amendment.” meaning under the any recognized omitted.) (Footnote 1756, 1774-75, 279,_, 107 S Ct 481 US
McCleskey Kemp, (1987). 262, 288-89 95 L Ed 2d constitutionally argues further
Defendant us for possible review is not meaningful appellate required, by the findings written require 163.150 does not ORS because above, Oregon’s times As noted several aggravation. crime initially defining aggravation statute considers jury’s possibility. death is even penalty which the ORS presented under writing questions to the three answer in respect 163.150(2) held in this implicitly have been sufficient in Jurek. by the decision
XII. claims of error specific now consider We shall in this case. respect proceeding with to the asserts defendant A. allege failed to that the indictment argues
Defendant would him notice that the give that would facts fac- aggravating “particular evidence sought in failing indictment is insufficient that the urge tors.” Amici 163.150(2) (a) of ORS language in the allege the victim. caused the death of “deliberately” 132.550(7) provides: ORS substantially following: shall contain
“The indictment * * * * constituting the offense
“(7) acts A statement of the repetition, and such language,without ordinary concise understanding person of common manner as to enable intended;” know what *49 aggra- is charged this defendant is offense with which (a) 163.095(2) (E), is set which in ORS
vated murder as defined that The ultimate facts opinion. this at the outset of forth To clearly in the indictment. alleged are up make that offense act “delib- does not need to murder one aggravated guilty does murder but aggravated If erately.” guilty one deliberately, acted perpetrator find that the unanimously yet guilty but is to death one is not sentenced guilty an pleading requirement There is no murder. aggravated possible to set forth the indictment requires that indictment charge. particular guilt fix for on that the law penalties B. court erred the lower contends
Defendant Watson, whom juror to excuse for cause sponte, sua failing, We set forth or excuse. challenge had chosen not par- that the dire examination of Watson of voir parts those pertinent: ties claim to be
By defendant: beliefs would you any religious or moral “Q. believe Do penalty in case? voting in the death prevent you from penalty the ballot. No, put I for the death “A. voted November, that rein- ‘84 election “Q. you in the Did vote penalty? the death stated Yes, I
“A. did. you that? way did vote on “Q. Which “A. I for it. voted information what basis of you explain to me
“Q. Would that answer? you formulate used to people there Well, there is out to me like just it seems “A. doing nothing to they are not people the time and killing all 10,12 they years, are out They slap hands and their them. doing again. issue, you: I’ll ask Do people “Q. believe Some eye a tooth for eye an an
you in the issue believe tooth? I
“A. You bet do. aggravated penalty for you the death “Q. favor Do murder? concerned, somebody’s somebody takes I’mas
“A. As far penalty. life, That should be a death murder. that’s Attorney was “Q. you if the District Do believe person probably penalty, would seeking the death Attorney seeking you if the District it? Do believe deserve proba- person, person that that on a certain the death bly it? deserves yes. guilty, If
“A. he was every person you convicted “Q. Do believe be sentenced to death? murder should somebody, I they they if think guilty, If were killed “A. *50 be, they yes. should penalty accomplishes you think the death
“Q. What do society? for up Well, days maybe people will wake these
“A. some of stop killing people getting and their hands just years doing slapped, getting prison a few it throwed over. duty, you
“Q. your recall the verdict that last do jury? was reached that Guilty.
“A.
* * * * you “Q. you contrary what feel If the Court instructs be, you any- will follow the Court’s instructions the laws to way? they If now?
“A. what you contrary you feel “Q. If instructs to what the Court be, anyway? you instructions the law to will follow Court’s they say is if I that’s—what “A. You mean don’t think right? say you opinion is.
“Q. have an on what law Let’s Okay. “A. you contrary to instructs
“Q. Judge, But the the Court anyway? belief; you follow the Court’s instructions would Yeah, I “A. believe so. you your decision could veto
“Q. realize that Do unan- it has to be possibility a death sentence because imous?
“A. Ah-huh. have
“Q. you think that criminal defendants should Do prove they innocent? are Well, yes, I “A. do. you pled guilty I have
“Q. feel that the fact that Do your any influence on the outcome of decision? Well, guilty guilty. ago,
“A. like I said awhile guilty people go “Q. you let some feel it is better to Do person? convicting an innocent free rather than risk Well, they they guilty— if are “A. are convicted <<* * * * * of this trial?
“Q. you Are aware of the seriousness death, Yes, I assume. “A. it is either life or “Q. you having type of decision will feel to make Do any psychological your psychological— have an effect on like that? you having with to make a decision effect on Nope. “A. your you influence
“Q. allow fear of criticism to Would verdict? Nope.
“A. rights criminals “Q. you agree disagree that the Do protected rights of victims? are better than way Well, lately that’s the it’s like here “A. seems working. been
“Q. you feel about that? How do Well, rights than have more “A. it seems like criminals we sometimes. do you you think about feel when
“Q. does that make How it? really I like it.
“A. don’t * * * *
u* descrip- gruesome “Q. that there Will the fact your ability to tions, testimony crime affect pictures of this or impartial? be fair and
“A. No.
<<* * * [*] [*] ques- this next you much time on “Q. like to take as I’d you give a choice of going I’m give me an answer. tion to you say you penalty four answers. Would favor the death little, some, lot, you totally or are for it? totally “A. I’m for it. added.) (Emphasis
“MR. WAGNER:Pass cause.” for By prosecutor: know, cases,
“Q. you As most and the case one you’ve already experience juror, jury usually as a had guilt or already determines innocence a case. The Court has determined; jurors guilt all told has been the defen- pled guilty aggravated dant murder Koenig. of Jeri He her, her, admitted that he killed the how he killed admitted by killing strangulation was causing done and assault her death, and that she a witness another at the time. case So, established, worry that’s been won’t have to that, it, probably about discuss it even won’t have to discuss shouldn’t except as it answering ques- relates these some of tions, and up. you that was where it come have should Do Watson, disagreement, Oregon’s part Mr. with two statute for murder, aggravated you that now since don’t have to do the part, first part woulddo the second which determines what the ultimate sentence will be? Well,
“A. just I kind of think that murder murder. is You somebody, you kill kill them.” many
Defendant and the
each cite
state
cases from
other forums to us in which prospective jurors were or were
not excused for particular
given
answers
in death penalty
cases on voir
We
dire.
think little is to be gained
going
through
one,
those authorities one
for
matching
case
is of
little assistance in this
general
area. The
rule
testing
error
quite
respect
simple.
The issue
the pro
is whether
spective juror’s
substantially
views would
prevent
impair
performance
person
duties of the
if selected as a
See,
juror.
e.g.,
Ohio, supra,
596-97,
Lockett
It is fair that Watson favored the strongly time, however, penalty. At no did he that he would say personal say be unable to set his feelings; aside he did imposition belief in his of the death would cause disobey fact, him to the court’s law. In instructions directly by if when asked the court should instruct *52 contrary belief, he the to Watson’s if would follow court’s
176 answered that he believed “anyway,” instructions Watson he that would. his does not establish that
The voir dire of Watson
prevent or substan-
death
would
favoring
views
the
a juror.
of his duties as
tially impair
performance
gener
a juror
contention that
who
If it is defendant’s
law, must be
as a matter of
ally
penalty,
the death
favors
opposes the
it, can make the
excused,
contention. “A man who
reject
we
no
than one who favors
penalty,
less
state and can
discretionary
entrusted to him the
judgment
Illinois,
Witherspoon
juror.”
the oath he takes as a
obey
thus
776,
1775,
Ed 2d
783
20 L
519, 88 S Ct
391 US
(1951),
598,
unfair and vindictive.
people
punishment
capital
byis
their will that
Oregon,
for it
in this state.”
is authorized
During for challenged jurors He lawyers as advisers. legal rienced of his He exercised 11 necessary.23 believed it cause when he summary, following quote which we find to brief the We from the state’s transcript: supported by the lenge, court excused. ments would hearing peremptory challenge challenged him cause, * * * officer’s advisors. * * * he counseling, was cause, juror “He The state Defendant granted and defendant and he awaiting problem. Again testimony * * challenged juror could not be * * * then defendant [*] interfere with Defendant defendant’s was. Defendant and did not because challenged also probation over that * ** challenged challenged to remove Sullivan. requested fair oppose he knew and would tend the state After challenged juror Sullivan challenge. him on because his violation of other witnesses. initially defendant’s the state attention and was for did on the grounds juror peremptorily.” cause * ** hearing passing juror’s agreed Abraham oppose granted grounds * * * Defendant alternate challenge, the case. for When juror brother juror’s wrestling to believe witnesses for *** * failing for recess juror juror challenge, Almen juror Milligan Defendant later exercised first The court and the cause, Sullivan would believe had been to confer passed should be excused Sweat, complete for on the juror and the cause, denied the chal- coach murdered. The juror because with his was excused. revealed that grounds sexual abuse juror Atkinson the state. commit- of his legal for an he permitted peremptory challenges. On several occasions *53 confer with advisers concern- legal recesses to his granted cause and challenges peremptory challenges. both for ing cause, and, passed juror although Defendant this for number he peremptory he did not exhaust his of challenges, way not use one on We have into looking did Watson. no typewritten defendant’s mind to determine on a cold record why to challenge Perhaps something defendant chose not him. expression, in Watson’s facial tone of or body language voice him to be a juror acceptable caused to is defendant. There certainly in nothing transcript revealed to voir dire judge failure, mandate that this reverse court the trial on motion, his own Watson excuse for cause.24
C. Defendant contends the court should have the opinion Cochran, excluded evidence of John forensic psychologist, opined clinic who it was more likely than not that defendant in the would future commit criminal acts of violence that would constitute a continuing threat to soci- ety. noted issue, As above where we first discussed this defen- argument proposition dant’s rests on the is that such evidence incompetent and cannot be received. The basis for this con- is that a large tention there are number studies that have some, a majority of, caused or even practi- mental health to believe prediction tioners that the cannot be all made at that psychiatrists psychologists are better make no able to lay it person than if it can be made. already noted,
As we have the persons who conducted those studies and those who relied them in writing articles cited defendant were not here available for cross- examination to test validity of their views. Because there objection challenge testimony was no or to the of witness basis, Cochran below on or this or other there was no need for the produce occasion state to evidence from those who cause; challenge an Defendant did not Watson for did not exercise defendant peremptory challenge unused remove Watson of defendant’s fate. from deliberation had, For whatever reason he then did not believe he have defendant should sponte, so, attempt sua jury. court exclude exclude Watson from Had the done have, jury, now not defendant contends the court should and had with Watson place, mandating penalty, have not returned a verdict the death would defendant arguing jury? excluding that the now be court erred Watson from are that the studies and conclusions cited
believe flawed. is on the face of the record apparent
There no error respect. D. the trial court erred
Defendant contends character, acts previous of defendant’s bad admitting evidence not in convictions. This and criminal conduct that did result if had in without but even it been objection, evidence came objection, over our reaction would be the same. admitted purpose for the of these bad acts was received evidence When evidence of defendant’s impeachment defendant. a defendant’s sought to be introduced blacken bad acts character, Code as a do not allow under Evidence we *54 prove disprove it does not tend to or rule because general 2 under ORS considering question In number fact in issue. 163.150(2)(b), however, such is relevant. It is evidence in every day logical beings, kind of evidence on which human predictions society justice system, and criminal make our is most to do in the future. person apt what a about accuracy truth or challenge did not Defendant and considered on jury information which the received this issue. respect. was no error in this
There E. to evidence failed that the state’s urges
Defendant to propensity he had a beyond a reasonable doubt that prove in itself criminal acts which would manifest commit violent way in future. that gained by quoting paraphrasing
Nothing is to be surfeit, a plethora, respect. in There is a the evidence this could of evidence from which supersaturation veritable in question should be the answer to the second conclude that conduct review of facts task is not to the affirmative. Our convinced, record; were, as was if it we would be anew on the question the second beyond all reasonable doubt that jury, affirmatively. be answered should
F. in Defendant contends the trial court erred fail- ing right on its own motion to which clarify prosecutor was with to as respect opening argument certain matters con- closing argument. trasted with opening argument, Deputy Attorney
In District Engdall jury: stated to the now, course, your purpose realize
“You here is not sounds, penalty. technically strange decide As as that you prison do not vote for life in or the sentence of death. You your your answering confine deliberation and attention questions; questions three during we have talked about part early proceeding. of this will further Court you, again, questions instruct as those to what are will questions. define certain terms found those within <<* * [*] * * duty upon
“You have a to decide three issues critical based the facts and the law. evidence and the Fair trial is mandated. know, freedom; As justice system heritage we our is our must be honored and must be held You are sacred. die; decide already whether the Defendant should live or it’s decided, fact, by
been the statute. You must answer questions. executioner, three are you You not the but are integral important in the part judicial system most process. And, fact, insure fairness you part are society’s own and last resort of self-defense.” closing argument, Deputy Attorney District Houchin told the jury: person—those you “I believe to a on this indicated by your you jurors. you will person, abide To a oath
agreed questions answered, factually that those are that can be you agreed your participate that best would do in the process answering questions. of those You all know the results your answer, easy. of jury going and it’s not That is be room should, tense; somber, going you’re it’s to be as well it because being very something asked to do is difficult for do. that us to fact, you’re being asked And I to make factual decisions. have, through believe that we through the evidence and witnesses, given you I sufficient basis to make those answers. you problems answering trust will no that have each of those questions yes, my client, Oregon, because State of believes yes only logical that answers are answers based on the evidence. not, your opin- agreed you if
“You each would that ion, solely change your you know that three answers because yes given of means this Defendant a death answers will be you your penalty. I’m will adhere to And sure each duty sworn a false answer to that. You are and not make avoid justice is in people who will determine what the level of trite, your job. but that’s You are this case. That sound County Oregon in of Linn of the State of conscience sentencing proceeding. You will determine whose life is more valuable; us, society Koenig’s the rest of those of us in Jeri be, society may or this Defendant’s.”25 whatever that
Assuming, deciding, that there is a conflict without we find prosecutor jury, each told the do not between what interpose it itself to correct called for the trial court Mr. remarks. Engdall’s unfortunately
Actually, they were although bit inaccurate. The Engdall’s jury remarks were not phrased, Mr. It imprisonment. life “technically” did not vote for death or specific questions. jury vote how answer three did had the course of transpired aware from what over well dire, jury it was the days, commencing with voir several deciding or life whether sentence of death that would be imposed. imprisonment was to be remarks, thing rate, the last anyAt Mr. Houchin’s abundantly charge, heard before the court’s made jury deciding the sen- its answers the would clear that knowing This was not insulated from imposed. tence to be in the manner condemned Caldwell the result of its decision the record in this case supra. suggest To that on Mississippi, answers is consequences not know the their jurors did deny intelligence if not an insult to the reality least to jurors.
XIII. manipulated that he In this court defendant contends system commit suicide and that the State argu- This partner to that course action. cannot be made the record. supported ment is victim’s murder, defendant stole the Following the approve content of the last sentence. We do not *56 apprehended motor when he vehicle and was San Francisco way wrong one-way drove the on a street. His vehicle escape thus was thwarted. appointed arrest he had counsel to defend him.
After arraigned sought permission When he and received for extra sufficiency time filed to test of the indictment. His counsel challenged on his demurrer behalf and therein the constitu- tionality many separate of the death statute on grounds, opinion. which have been addressed in this proceed counsel,
After he was allowed to without an advisory capacity, other than in he filed and several argued pretrial instance, private motions. For he filed motions for witnesses, pretrial interviews with for payment expert wit- fees, ness grand jury testimony, for disclosure of for tele- phone to be installed in his cell his preparation to facilitate trial, for of property return that had been him seized from to be challenges. allowed instead of 12 peremptory He successfully opposed the state’s motion that he be shackled during trial, he although argument conceded that he during person. successfully was “violent” He stip- also obtained a ulation the state that jury limited what would be allowed to hear as to the details his assault on the infant child of the victim.26
Not did literally ask hundreds questions dire, trial, voir during sentencing but defendant vigorously effectively cross-examined state’s witnesses. His cross-examination at times elicited tes- timony was successfully favorable to him. He impeached a witness with a written document. He made objections evidence, and some were sustained. Some those successful objections hearsay were for relevancy. and some for His native intelligence and lawyer the advice of artfully his advisers were employed challenge picture of him which the state sought to paint.
In his argument jury, to the he did not ask to be urged executed. He not return findings affirmative prosecution The assault on the is what victim child led to the which the was victim, witness, killing qua be a witness. Defendant’s was made his what aggravated murder of her murder. questions empha- to the to be jury. three submitted to the He proof sized the state’s burden that the burden argued argued had been met. He the “bad acts” and “bad years his more part during nothing conduct” on his teen his goes through. than child As to hundred average what *57 fights prison jail, argued tough so and he that those are to environments that demand that kind conduct survive. argued that had failed to prove He the state by the question concerning provocation answer to the third of her argued person victim. He that she was a bad because to him and that she deserved what conduct unfaithfulness as got. argument she He concluded his follows: really, really piddly, things “All these are little that up, proportion, to blow Prosecution has tried build out you penalty I that make that deserve the death believe hope there is no me. I from these things
“He describes all the that have taken of, things spoken he women that he but those are the has spoke only things I ever of and were the asked for. Prosecution, you I Mr.
“Again, want to tell Houchin—well, into Mr. when I came this—in Engdall and Dire, They very intel- I was worried. seemed Voir day I ligent—seemed. then I seen the first of trial But after back; really just I It was sat didn’t even have to cross-examine. very put examples they gave The sloppy; poorly together. so I I disappointed. thought I I was was also were sour. shocked. stands, challenge. But I didn’t even have to would have as put on a defense. now, know, any you I to waste more
“And like don’t want your valuable time.” to province it is our arguendo, that within Assuming, issue, was not we find that defendant find facts as this so as to cause the state manipulate system attempting committing him in suicide. to assist sum- with the state’s Finally, agree on this issue we mation in its brief in this court: why reason the death sen-
“There is a more fundamental reversed, brought if about defen- even tence should not be people Oregon (by their design. dant’s deliberate 7); (by its cases court enactment of Measures past); in the the courts of upholding death sentences states, States; legislatures and the of this and other United peo- for certain appropriate that death is have all concluded reason, ple. them. There is no and defen- Defendant is one of none, why agree with he should not be allowed to dant asserts rationally judgment. If a defendant concluded that he had deliberately, response that his act was unreasonable killed any probability provocation, that there was a that he would future, in the and that he commit criminal acts of violence penalty, permitted take the death he should be deserved position The state does not concede at the trial. so, had, even if he he would have been that defendant did but prohibit as a matter of law entitled to do so. To such a choice personal autonomy and human comport with the does defendant, capital dignity which is due criminal even case. thing
“D.
‘Suicide’ is not the same
execution.
lawful
if
‘use the
“Even
it can be said that defendant
tried to
death,
appellate
system’
argu-
his
defendant’s
to achieve
own
ment misconceives the nature of the end result. Suicide and
pur-
An
lawful execution are different.
accused’s execution
represents
by society,
imposition of a sanction
suant to law
appropriate
through
after the
criteria have been satisfied
*58
contrast,
proper legal proceedings. In
suicide is an act of self-
reasons,
private
destruction committed
an individual—for
(at
against
historically)
society.
least
the moral laws of
capital
eagerly
Whether a defendant
in a
case
seeks the death
breath,
penalty, acquiesces, or resists it to his last
the final
lawfully
equation
decision is never his.
Defendant’s
imposed
sentence
death with ‘suicide’ trivializes this state’s
adopt
penalty
aggravated
solemn decision to
the death
for
overlay,
argument, stripped
murder. The
of its
rhetorical
nothing less than an attack on the moral and constitutional
permissibility
penalty
of the death
itself—an
that
attack
already
society.
in
has failed
the courts and
our
See Or
Const,
I,
40;
Quinn, supra,
Art
State v.
that we do not find this defendant so system, preceding the observation in the but we believe made validity. sentence have
CONCLUSION statutory Oregon pro The Constitution and law possible penalty carefully vide of death for certain aggravated murders; the and statutes do defined constitution not for such murderers. The statutes do not mandate death they oper Oregon provide Constitution; rather, offend the purpose provi which the of the constitutional ative vehicle may long I, 40, be sion, Article section attained. So Jurek supra, law, Texas, remains the constitutional statutory imposing “scheme” for sometimes the death does offend the Constitution of the United States. not his
Defendant made a solemn choice not to contest charged guilt after trial the crime in the indictment extraordinary lengths he to ensure that realized court went possible of his decision and the two results that nature flow from that decision. must concerning trial
Insofar as
claim of error here
portion
sentencing
proceedings
of the
below
Although
concerned,
a fair
his
defendant had
trial.
defense
vigorous
ultimately successful, and not com-
was not
was
pletely lacking in skill.27
27
dissent,
pursue
a course
Linde states: “defendant
allowed
his
Justice
appointed
making
lawyers
prevented
him from
an
who were
to ‘advise’
aggravated
nothing
challenge
proof
murder.”
find
the state’s
We
effective
challenge
made
defendant’s advisers would have
had defendant
record to show what
pleaded
challenge.
guilty,
Or at
have been an “effective”
let alone
it would
194-95,
1185.
Antonio School District v. 17, (1973). explains the statute struck down That Court’s footnote 43-44 implicitly implicated right States. found the Constitution of United Skinner “right life” to be found there. is not P2d Justice Linde notes Or at footnote process people possibility which can the initiative that there is tension between requiring legislation that a directly the United States and the Constitution of enact IV, 4. This republican government Art is not before § be maintained. US Const form us. The judgment of conviction and sentence of death by imposed trial court are affirmed on review. *61 «L,
LINDE, dissenting. public Oregon’s in this case directs judgment his discharged death a defendant who law- put officials offense, a and failed guilty capital yers, pleading insisted plausible propriety to the his challenge to make a serious or proceeding a fell far short death sentence. The as whole voters were anticipated Oregon’s kind of trial when capital It state. also fell penalty asked to reinstate Supreme set the United States Court. short of standards measure, penalty the 1984 death There is serious doubt that already questionable in its Texas which exacerbated the flaws model, standards. can meet federal standards, Court’s the sentenc-
Under the jury, able to ing authority, judge reject either the or must be legal if the proved, the death even when its basis facts against concludes that additional militate sentencer particular case. The 1984 measure death sentence in the authority. nor the Neither jury judge allows neither the actually against is asked to decide for or judge nor the three as the is written. The answers penalty, law legally It questions predicted facts. cannot specified past that do not relate to respond mitigating considerations questions. those three recognize law that extraordi-
Oregon and federal both *62 public nary met if officials are to procedural standards must be life, defi- Oregon’s complex a murderer’s. person’s take a even in the murder and the issues involved aggravated nition of these impossible make it to meet penalty 1984 death scheme the prosecution’s a advocate tests unless skilled standards his defense. The case, the accused makes own even when here. certainly were not met standards why the reasons I this dissent demonstrates believe should be not stand. The case sentence should this death state, through pros- trial, its proper for a unless remanded proposal Defender’s ecutor, to the Public chooses to accede with a minimum of 30 imprisonment a of life impose sentence parole. ORS may be before defendant considered years 163.105(1). CASES IN CAPITAL
I. ACCURACY STANDARDS ballot put that was on the penalty The death measure
189 by impossible initiative and enacted in 1984 well square requirements Eighth with under the federal and Four- repeatedly teenth Amendments stated the United States The Supreme Court. reasons for this spelled conclusion are opinion. present case, however, out in Part V of this In the compelling why there are reasons independent law a fell proceeding required as whole short of those for a sentence, though valid a death maximum sentence short of might procedures death be affirmed. Because the and indeed penalty death present unprecedented scheme are in necessary it is Oregon, to state those reasons in detail.
First, American law
dif
long
has
recognized
ference between punishment
punish
death and all other
given
important procedural
ments and
consequences. The
deadly
fact that defendants
in
peril
“stood
of their lives” is
what more than a half-century
an
ago made
“effective”
appointment of counsel matter
a
of federal due
in
process
Alabama,
45, 71,
55,
Powell v.
287 US
53 S Ct
190 here as elsewhere early years, penalty In the state’s death imposed punishments, regardless much like other was by offered represented was counsel or whether defendant Rathie, 339, 199 (1921), P See, e.g., 101 Or 169 defense. State v. Harrell, 95, (1910). then, Or P Even parte Ex 110 493 to “the scrupulous adherence rules recognized court required was provided” which the law has itself methods 397, Olds, 24 P capital in cases.” State v. Or “especially (1890). Later constitutional amendments introduced I, differences. Article section was amended important by by to trial and be tried permit 1932 to defendants waive alone, A capital expressly but cases were excluded. judge requirement the existing further amendment 1934 relaxed a verdict in criminal cases and authorized ten of unanimous or not but jurors guilty guilty, to render a verdict of again guilty degree excluded verdicts of of first amendment verdict. murder, require which continued to unanimous final, adoption important A difference arises from penalty law itself. That is the difference present of the It, too, penalty cases. scope in this court’s of review death decisions of the United States support finds constitutional Supreme Court. subject in a death case is to duty
This court’s of death to “auto- of conviction and sentence judgment 163.150(l)(f). The death matic and direct review.” ORS Assembly. It Legislative enacted penalty law was not initiative, deep opposition over the adopted upon popular The minority Oregon’s voters. assurance significant “automatic” review the that death sentences would receive promise to highest part proponents’ court was state’s for the measure as well voters, those who decided vote Pamphlet November 1984 Voters’ opposed those who it. 33. change makes a crucial from
This assurance The ordinary appeal. an criminal responsibility court’s satisfies whenever it responsibility does not meet its court arguments pre- disposes it whatever itself that court’s sents, in this case. The majority proceeds as the defendant; the law merely responsibility is not penalty of death. unique that limits the review is Supreme Court point of “automatic” *64 and, filing appeal not to save defendant the trouble of an if necessary, petition point give for review. The is not to life, defendant opportunity to save his if he has the desire and the An help competent ordinary counsel to do so. appeal prevent does that much. Nor is it to a defendant’s point state-assisted “suicide.” The assuring this court automatically must every review death sentence case is to make penalty certain that the death imposed and executed only by the by criteria and within the bounds set the law itself the Oregon and United States Constitutions. The Pennsylvania Court of relied on that state’s similar provision for “automatic review” to invalidate a death sen tence even when a expressly it, defendant refused to challenge holding “overwhelming public interest” in insuring that capital punishment comports with constitutional requirements and the finality” “irrevocable of the death sen tence made validity review of its “imperative.” Commonwealth McKenna, 440-41, 174, 181 (1978). 476 Pa 383 A2d
Automatic review under the death penalty measure therefore primarily is not an act of concern for a defendant who merit little concern and demand none at all. The is not allowed to waive review. It is not sympathy with a killer that explains the vigils prisons outside when the state schedules the execution of one people. of its Because the court’s duty is to assure that the state puts no one to death unless the qualifies sentence law, under all criteria of the court needs a record on which the relevant issues can be deter- and, mined they the extent that depend facts, have been properly determined in the circuit court. This cannot be done defendant, if a by refusing reducing counsel or them to the role of “advisers” and pleading guilty, potential legal eliminates and factual issues from proper determination the court or jury. important These issues are to others than the defendant.
Together, unique nature of penalty, the death requirements embodied in the provisions I, trial of Article section and the purposes of “automatic and direct review” bar execution of death sentence in this case.
II. COMPLEXITY OF CAPITAL MURDER ISSUES
To see how a like that proceeding present in the case certainty can frustrate the required sentence, for a death one penalty- begin must with a careful examination the death law.
ORS not aggravated 163.150 itself does define murder, the crime for which the death is authorized. It prescribes procedures imposing additional and criteria for penalty. presupposes But ORS 163.150 defen- court aggravated pro- dant has committed murder before the sentencing supposition to the That will proceeding. ceeds issues, depend following examples often on debatable as the here, They they included because arise in this show. are case, they why no unrepresented but because illustrate defen- murder simply by pleading guilty aggravated pro- dant can predicate requisite for a death sentence with the vide the certainty. degree *65 murder is defined in 163.095 fol-
Aggravated ORS as lows: section, in ‘aggravated used 163.105
“As ORS in murder’ murder as defined ORS 163.115 which is means under, by, any accompanied following committed or circumstances:
“(l)(a) pursuant The defendant committed murder money agreement receive or other to an thing committing of value the murder. for
“(b) The defendant solicited another to commit the paid person money agreed pay the or other murder and or thing of the murder. committing value for
“(c) having defendant committed murder after been homicide, any previously jurisdiction in convicted in crime of murder as defined elements which constitute the manslaughter degree in the first as defined ORS 163.115or 163.118. ORS
‘‘(d) murder in the same There was more than one victim episode defined in 131.505. criminal as ORS “(e) in the or as a result The homicide occurred course of maiming victim. of intentional or torture of the “(2)(a) following of the and the The victim was one performance murder was related to the of the victim’s official system: justice duties 181.610(6);
“(A) A in ORS police officer as defined “(B) correctional, parole probation or A or officer other duty custody, supervi- or person charged with the control persons; sion of convicted Police;
“(C) A member of the State “(D) 1.210; judicial A officer as defined in ORS “(E) juror proceeding; A or witness in a criminal “(F) employe justice; An court of or or officer of a “(G) A member of the State Board of Parole.
“(b) state, county in a The defendant was confined or in municipal penal facility or correctional or was otherwise custody when murder occurred.
“(c) The defendant committed murder means of an 164.055(2)(a). explosive as defined ORS “(d) 163.115(l)(b), Notwithstanding ORS the defen- personally intentionally dant committed the homicide 163.115(1)(b). under the circumstances set forth in “(e) The murder was committed an effort to conceal crime, identity of a commission or to conceal the of the perpetrator of a crime.
“(f) The murder was committed after the defendant state, escaped county municipal penal had from a or correc- facility tional and before the defendant had been returned to custody facility.” Whether murder is an “aggravated” murder under this stat- questions ute turns on facts, of law as well questions professional demand knowledge professional of law and responsibility for making proper record.
What,
instance,
qualify
will
“thing
as a
value”
*66
purposes
163.095(1)(a)
(b)?
for
of ORS
v.
State
Cf.
Whitley,
455, 459,
(1983)
295 Or
What
is “torture”
meaning
within the
of subsection
(1) (e)? If a
pleaded guilty
defendant had
under this subsection
without counsel to raise that question, before this court cir
27, 32,
Cornell/Pinnell,
cumscribed “torture” in State v.
Or
304
(1987),
defendant death sentence committed facing murder. aggravated persons qualify kind of under ORS
What
163.095(2)(a)(B)
duty
“charged
custody,
with the
being
supervision
persons”?
control or
of convicted
What does
mean
a murder “related to” the victim’s official
subsection
(E),
“juror
a
or witness in a
paragraph
duties? In
how far does
in
proceeding”
potential jurors
criminal
include
and witnesses
anticipated
proceedings,
future
must this status
known
620, 626,
Maney,
v.
297
P2d
to the murderer? See State
Or
688
(1984).
(F),
a
paragraph
does an “officer” of
court
include,
instance, a
“employe”
pros-
is
an
justice who
not
for
9.010(1) (any
member of the bar?
ecutor or other
ORS
Cf.
court”).
is
state bar member
an “officer
custody”
confined in
in subsection
Does “otherwise
(2)(b)
potential
for
murder and a
purposes
aggravated
mean
person
for
a
before
warning
death sentence what
it means
Milligan,
police questioning,
or is it
clearer?
State v.
Cf.
(1988)
(compelled
samples
P2d 130
blood
304 Or
Okeke,
“arrest”);
Or
State v.
taken without formal
(1987)
person
seized from
(excluding
III. CAPITAL CASES UNDER
I,
OREGON’S ARTICLE
SECTION
A guilty plea also can leave doubts under the aggra-
murder
prosecution
vated
law unresolved when the
excludes
penalty,
the death
unusual; pleas
but that
is not
of guilty to
carrying prison
felonies
sentences often do not accurately
statutory
match the exact
that
crimes
the defendant
in fact
Parole,
See Rise
v. Board
385, 396,
has
committed.
304 Or
(1987) (Linde, J.,
Article section prosecutions, right “In all criminal the accused shall have the public by impartial jury county trial in an which committed; by offense shall have been to be heard himself and counsel; to demand nature and cause of the accusation him, against copy thereof; and to have a to meet the witnesses face, process compulsory obtaining face to and to have favor; however, provided, witnesses his accused cases, person, capital other than and with consent of may judge, the trial elect trial to waive and consent alone, judge of be tried the court such election to be however, ten writing; provided, in the circuit court mem- guilty, guilty or not render a verdict bers murder, degree except guilty of first a verdict of save verdict, only by a unanimous and not which be found shall ** otherwise; *.” *68 by “capital exclusion of cases” majority The dismisses the to designed 1932 amendment allow that was explaining jury, a a which the section trials before court without criminal long had been prevented, and that defendants previously any capital as to other crimes. plead crimes guilty allowed to statement, but it misses the historically is a correct That point. why is not the 1932 amendment allowed question
The alone, by be with jury judge to waive a tried defendants why is the amendment question consent. The judge’s defen- a distinction and did not allow the first time created not be to cases.” The reason could “capital to do so dants burden, the amendment of a difficult because judges relieve Rather, case. the exclusion required judge’s consent concern, con- to another to the same “capital points of cases” when degree “first murder” explains the exclusion of cern that by convictions amended in 1934 to allow again the section course, concern, is jury unanimous verdicts. That less than certainty jury by a unanimous highest degree to assure a proved beyond has every capital element of a crime been that order a defendant be may doubt before a court reasonable put to death. certainty in the demand for reflected heightened
The if a defendant can I, is frustrated amended Article section capital a crime sim- scrutiny of each element of jury foreclose defendant is free It is no answer that a ply by pleading guilty. for the provided protection, is for his a procedure to waive a capital permit does not amendment repeat, alone. To by tried the court waive a case to is at stake. the defendant’s self-interest more than states that have the death A number of those plead guilty at will to and be do not allow defendants at all cited opinion reviews cases majority to death. The sentenced distinguishes the painstakingly Defender and by the Public laws. Those cases and laws Oregon’s from laws in those states deny their for the differ, significance not indeed but does expressed by issue before us. It was Court of North as a matter judicial policy Carolina before a statute reversed it: person
“The idea that a own should be allowed to decree his unacceptable, judiciary, death has been not but the penalty only large. supreme citizens at This has inflicted the State beyond
when has twelve been convinced guilt reasonable doubt of the accused after a trial appropriate pro- with safeguards conducted ceeding.” all the to such a Watkins, State v. cert 17, 30, 800, 809-10, 283 NC 194 SE2d den (1973). same policy necessarily US The implied I, in Article section Whatever 11. have been the early practice, after the 1932 amendment accept- there is no explanation able interpretation for an would defen- let a requirement dant circumvent the section’s of a unanimous capital verdict in a pleading guilty yet case choosing trial by the court without a jury. interpretation sensible is that a requirement defendant cannot circumvent all.
IV. AND ANALYSIS RECORD LACKING IN SENTENCING PROCEEDING certainty required
The a for valid death sentence was similarly by frustrated the manner in which defendant was permitted sentencing phase to conduct the of his case. aggravated law,
Like the murder the death sentence statute, 163.150, pure ORS bristles with difficulties. Some are law; questions require of others an adequate factual record. They obviously beyond competence were the of or any this unrepresented defendant. provides
The statute a defendant is to sen- tenced to if jury affirmatively death the decides three issues:
“(A) Whether the the conduct of defendant that caused the of deliberately the deceased was committed expectation with the reasonable or that death of deceased result; another would
“(B) probability Whether there is a defendant would commit criminal acts would constitute of violence that issue, determining continuing society. a threat to cir- mitigating court shall instruct the to consider evidence, to, including, offered in but not limited cumstances severity age, extent and the defendant’s defendant’s the prior of mental and emo- conduct and the extent criminal acting at the pressure under which tional committed; and time the offense was evidence, “(C) If whether the conduct raised killing unreasonable the deceased was the defendant provocation, any, by response to if the deceased.” 163.150(l)(b)(A)-(C). are to be decided on The issues ORS sentencing ORS proceeding. at and in the evidence taken trial 163.150(l)(a). poses greatest prob-
The of these issues second (B) The text demands paragraph of law and of fact. lems scrutiny. careful for decide
The first sentence calls would probability a the defendant there is “[wjhether a con- that would constitute commit criminal acts violence majority “proba- tinuing society.” The construes threat not,” likely as did the trial court. It mean “more than bility” to rather than the of the conditional “would” meaning leaves the prob- if But harder what? unexplained. future “will” “Would” lems remain unresolved. they Are lim- are “criminal acts of violence”?
What persons? bodily person a or against ited to violence directed not, statute, do could so limit the but words The court bombing is self-evident. Are arson the limitation propensity buildings person Does with acts of violence? pets other killing torturing their or victims get his of violence?1 commit criminal acts animals first sen- further The statutory qualified. test is subsection, poses the emphasis, quoted again tence of the the defendant probability there issue “[w]hether constitute a violence that would commit criminal acts of would *70 ” words emphasized do the continuing society. threat to What society, to continuing threat must constitute qualify? What violence, acts or criminal anticipated the nature degree probability? of their distinction between
Moreover, the words make a seriously 167.320, injuring or criminal “animal abuse” See ORS which makes cruelly killing an animal. probable criminal acts of violence that constitute a threat society and others that do not. The distinction must have meaning; we are not free to treat it as surplusage. statute,
“In the construction of a
judge
office of the
is
simply
stance,
is,
to ascertain and
declare what
terms
inor
sub-
therein,
contained
not to insert what has been omit-
ted,
inserted;
or to omit what has been
and where there are
provisions
particulars
is,
several
possi-
such construction
if
ble,
adopted
to be
give
as will
effect to all.”
ORS 174.010. See also Portland Adventist Medical Center v.
Sheffield,
197, 200,
(1987).
303 Or
Once again, present point is not that all these questions eventually need present point, rather, answers. The is that these crucial analysis issues demand evidentiary and an record, both of which obviously beyond are capacity of an unrepresented defendant. They certainly were neither ana- lyzed pursued nor in the record that led to this defendant’s death sentence.
V. NONCOMPLIANCE WITH FEDERAL CONSTITUTIONAL STANDARDS 163.150(l)(b)(B)
As if these problems with ORS were enough, bad worse assigning follows. After to the task to determine the “probability that the defendant would
200 a con- commit criminal acts violence that would constitute 163.150(1) (b)(B) tinuing society,” to ORS continues: threat * * “* determining issue, court shall instruct the this the jury any in mitigating to consider circumstances offered evi- dence, to, age, including, the but not limited defendant’s severity prior extent criminal conduct defendant’s pressure under and the extent of mental and emotional acting at the time the offense was which the defendant was committed;” a of issues that no
This sentence adds new crucial set let expected recognize, to unrepresented defendant can be not and did Certainly deal with. this defendant could alone indispensable As an ele- consequence, not deal with them. no in to death. played sentencing ment role “mitigation” nature of the issues To see the crucial fact, must source. law and one review their once) (l)(b)(B) (for says that plainly
ORS 163.150
age,
be
the defendant’s
jury
shall
instructed
consider
conduct,
pressure
mental or emotional
at
prior criminal
crime,
circumstances offered
“mitigating
time of the
and other
probability
in
that the defendant
determining
in evidence”
of violence that would constitute
“would commit criminal acts
society.”
determining
in
whether
threat
Not
continuing
death,
issue. The
put
jury
he
she
or
other
should
estimating
in
the defen-
“mitigating”
to consider
facts
violence.
dangerous
to further
criminal
propensity
dant’s
miti-
Oregon statute’s sentence on
The source of the
in
of the Texas Court
is found
a decision
gating circumstances
(1975).
State,
in
v.
law, despite
previous
importing
failure with
Texas stat-
the
Oregon,
ute into
see State Quinn,
290 Or
doubt under the statute mitigating that expressly jury’s evidence is tied assignment predict to the the continuing threat of a defendant’s criminal violence. The was so instructed in this case.2 jury: judge The trial told question
“The second is: probability Jeffrey Wagner “Is there a Scott would commit criminal acts continuing society? deciding of violence constitute a threat would question, probability likely second means the occurrence of an event is more than committing not to occur. Here event is the of the chance criminal Probability acts of violence. does not mean the occurrence event is certain. you any mitigating determining “In this issue consider circumstances shall to, including, age, received in but limited the extent evidence defendant’s severity prior and of the defendant’s conduct extent of the criminal and pressure acting mental under at the time and emotional which defendant was killing was committed.” opinion Texas, however, lead in Jurek v. signed by justices. role Supreme three Its brief treatment of the superseded by “mitigating circumstances” was later striking penalty Court decisions. In down an Ohio death law in Burger 1978, Chief Justice wrote: “* * * prevents capital statute that the sentencer all [A] giving independent mitigating weight aspects cases from character record and to circumstances defendant’s proffered mitigation the risk offense creates may imposed spite penalty death will be of factors which penalty. is life call for a less severe When the choice between death, incompatible unacceptable with that risk is Eighth the commands of the and Fourteenth Amendments.” Ohio, 605, 98 S 57 L Ed 2d Lockett v. 438 US Ct (1978). though “liberally Ohio had construed” what evi- Even mitigation, its statute dence was admissible on the issue relating sentencing limited court the evidence to three statutory mitigating deciding issues in whether a defendant or die. The Chief wrote: would live Justice range mitigating “The circumstances which limited by the the Ohio statute be considered sentencer under Eighth incompatible and Fourteenth Amendments. with requirements, statute To meet constitutional preclude mitigating fac- must not consideration of relevant *73 tors.” sentencing capital his of laws after Lock-
Id. at 608. In review Stephen ett, that the Lockett rule Professor Gillers concluded any sentencing scheme model and other invalidated the Texas body’s sentencing mitigating of evi- “channels” the use that questions. answering prescribed Gillers, factual dence toward exactly supra, course, That, at Pa L Rev 31-37. of 129 U 163.150(1)(b)(B) does. whatORS adopted 1982, as Court the “rule in Lockett” invalidating death sentence an Oklahoma the basis because the trial court appellate court had construed excluding as consideration of defendant’s Oklahoma law family history,” “beatings by father,” a harsh “turbulent having “been connected with “severe emotional disturbance” family neglectful, violent, back- even raised in a sometimes Eddings ground.” Oklahoma, 104, 113-16, 102 S Ct 455 US exactly (1982). 1 Court did not volunteer 869, 71 L Ed 2d The they regarded “mitigating” as and what must be what facts 203 obviously are crucial the con- mitigate, questions must penalty proceeding. duct of a death But left no Eddings doubt circumstances could mitigating not be confined to dis- proving past factual element some of defendant’s or future conduct, 163.150(l)(b)(B) ORS as does. And the kind facts wrongly Eddings from just excluded consideration in are as likely predictably likely to have made more in future violent acts. engage significance Eddings for the law was Texas
apparent. Eddings One Texas scholar wrote: “The decision questions raises serious about constitutionality capital procedure.” Texas sentencing Benson, Capital Texas Sentencing Eddings: Questions Regard- Procedure Some After ing Validity, (1982). Constitutional 23 South Tex JL 315 Although plurality opinion in Lockett the distinguished had three justices Texas law as in Jurek had understood it law, from the defects Ohio rule promulgated “the in Lockett, interpreted applied Eddings, may signal the (footnote omitted). end the Texas scheme.” Id. at 323 Pro- fessor “In light Benson concluded: of Lockett and Eddings it appears the present statutory Texas scheme for sentenc- ing capital is constitutionally cases inadequate under the Eighth (footnotes and Fourteenth Amendments.” Id. at 331 omitted).
Later repeated Court decisions have importance of untrammelled consideration of mitigating fac Carolina, tors. In Skipper 1, 4, 106 1669, u. South 476 US CtS 1670-71, (1986) 90 L Ed 2d the Court wrote: disputing “There is no this Court’s decision ‘
Eddings requires capital that in cases “the sentencer ... not precluded factor, considering, mitigating any from as a aspect of a defendant’s or character record and proffers circumstances of the offense that the defendant as a ’ Eddings, supra, basis for a sentence less than death.” at 1, 102 Lockett, L (quoting supra, 71 Ed 2d S Ct 973, 98 2954, 9 Ops L Ed Ct (plurality opinion 2d S Ohio 3d J.)) Burger, (emphasis original). Equally of corollary C. clear is the rule that the sentencer not refuse to consider *74 precluded ‘any considering from mitigating relevant evi US, 114, 71 1, 102 dence.’ L Ed S Ct 2d 869.These rules 455 established, question are now well and the State does not them.”
204 unanimously 1987, sentence the Court reversed mitigating the had excluded factors that were when state court not made relevant Florida law: advisory jury think it could not be clearer that the “We consider, sentencing judge not and the was instructed consider, nonstatutory mitigating refused to evidence cir cumstances, proceedings and that the therefore did not com Carolina, v. port requirements Skipper South 476 with 1, 1, (1986), Eddings L S US Ed 2d 106 Ct 1669 90 Oklahoma, 104, 1, 102 (1982), L Ed Ct 869 455 US 71 2d S 973, Ohio, 2954, 2d 98 Lockett v. 438 US 57 L Ed S Ct 9 (1978) (plurality opinion).” Ops 3d 26 Ohio Dugger, 1821, 1824, Ed 393, 107 481 S 95 L Hitchcock v. US Ct (1987). again 1987, the Later in Court followed 2d sentence, to reverse Nevada death because these cases possible mitigation in consideration of sen statute allowed no tencing prison Again the Court life-term inmate for murder. wrote: sentencing authority “Although a decide that a sanction case, appropriate particular in a death is not
less than underlying Eighth respect humanity fundamental present requires be able to Amendment justify mitigating a lesser relevant evidence could sentence.” US_, 2716, 2727, Shuman, 97 L Ed 107 S Ct
Sumner v. 2d show (1987). quoted Dugger 56, Hitchcock v. And Court merely point not that the sentencer must decisive “nonstatutory mitigating circum- consider admit evidence but at_, L Ed 2d at 66. 107 S Ct at stances.” Id. Though involved the laws of different states these cases they distinguishable facts, insis- leave no doubt of Court’s mitigating fac- individualized tence broad consideration tors. Eddings, sequels
Lockett, and their cast serious doubt practice, significance for ORS but their on the Texas (B) 163.150(1)(b) “mitigating In Texas is still more obvious. judicially part but were of the statute circumstances” are (however assignment illogically) jury’s attached estimating criminal violence. Texas courts defendant’s future satisfy try might in an effort to to undo this connection although opinion misconception Texas, in Jurek v. of the lead each concluded that fact and Benson Professors Dix *75 Texas courts have not done so. It impossible is difficult if not to insert the broad consideration of “mitigating aspects of the defendant’s character” and other mitigating circumstances as by demanded “the rule in Lockett” even into the Texas stat- Oregon, sponsors 163.150(1) (b) ute. But in the of ORS fore- any closed such judicial manipulation by expressly tying “mitigating circumstances” to the second issue that the is jury “no,” told “yes” to answer or the specific issue of danger to society from a defendant’s probable criminal acts of violence. While with agreeing most of Justice dissent, Gillette’s 305 Or 219,1 see no room in the statute for a court to instruct the jury to answer different or additional questions. The statute designedly denies both jury any the court responsibil- ity actually choosing the death sentence once the three statutory questions are answered. If “mitigating circum- stances” in a defendant’s background, such as those in Eddings, relate to something other than prediction violence, future the statute makes a death sentence man- datory.
The state’s brief distinguishes particulars Lockett, Ohio statute in but of course that does not relate to Supreme Court’s subsequent affirmation and reaffirma- tion of “the rule in Lockett” as a general rule requiring consid- eration of mitigating aspects every case. The Department of Justice ultimately does not defend the validity of ORS 163.150(1) (b) as the sponsors wrote it. Its only says brief this court should find a way to “construe” the pass measure to constitutional muster. It offers no suggestions how that done, should be whether inventing additional issues to be put to the jury different from those specified statute, in the by what other means. This is not a matter of interpreting meaning of existing words. It require would surgery, radical “to insert what has been omitted, and to omit what has been inserted,” contrary to ORS 174.010. And it would not allow affirmance of the death case, sentence in this in which the trial court quite rightly instructed the jury to consider mitigating circumstances only deciding the second stat- See note utory question. supra. majority believes that it can save the statute
The construing provide it to for the introduction and consid- eration of what majority calls “mitigating” evidence on questions major- first third as well as the second.
ity evidence and opinion speaks admitting sometimes such it, the termi- telling sometimes of consider but Of course defense evidence nology important point. not the admitted, statutory must bearing questions on all three jurors will and the court remind course defense counsel procedure in this case failed to (though again, consider occur). 163.150(1)(a) expressly ORS assure either would requires that much. however,
That, is not what Court’s If cir- phrase “mitigating circumstances” means. “mitigating detracting only meant evidence from one of cumstances” criteria, the identical if statutory requirements three would be *76 a word the death Supreme the Court had never written about Rather, Supreme “mitigating Court refers to cir- penalty. the defen- circumstances in the individual cumstances” the might legitimately sentencing judge case that move dant’s put the not be to or to conclude that defendant should despite qualifications the for a death meeting death other be to whether judge sentence. The must free consider to tests statutory circumstances other than those relevant the see, culpability, e.g., a in some diminish defendant’s degree Arizona, US_, S L Ed 2d 127 v. 481 107 Ct 95 Tison (1987),3 past a culpable or whether even defendant’s highly characteristics should count background and individual Oklahoma, life, against society’s taking Eddings his as in v. supra. quotations Supreme opinions
To all from Court’s issue, only majority answers mitigation on the Texas, supra, v. that the Court Court has not overruled Jurek 3 in The Court said Tison: directly that a sentence must be heart the retribution rationale is criminal “The personal culpability While the States the criminal offender.
related to the
deciding
in a
generally
in
much
to exact
wide discretion
how
retribution
have
case,
irrevocability,’
severity
Gregg
penalty, ‘unique
v.
given
in its
the death
(1976),
inquire
requires
Georgia,
into the relevant
US
187
State
428
Woodson v. North
record
the individual offender.’
facets of ‘the character and
case,
Carolina,
280, 304 (1976).
in
‘the focus
be
[had to]
US
Thus
Enmund’s
428
robbery
culpability,
committed the
and shot
not on that of those who
his
victims,
require
as a
for
insist on “individualized consideration
constitutional
we
’
Florida,
imposing
798
Enmund v.
458 US at
in
the death sentence.”
ment
(1978)
Ohio,
(emphasis
original).”
(quoting
in
v.
US
Lockett
605
L Ed 2d at 139.
S Ct
1683. 95
recently
in fact continued to refer
Jurek as
as this winter
546, 98
L Ed 2d
Phelps,_US_108
S Ct
Lowenfield
(1988).
Supreme
Undeniably Court sometimes sounds like
drummer;
a
beat of more
one
but
marching
band
to the
than
Jurek,
asking
when this court looks
for citations of
it is
wrong questions,
dissenting opinion
as Justice Gillette’s
emphasized
The
from
passage
shows.
Lowenfield
instance,
majority,
primarily
question
cited Jurek
on the
a
penalty
adequately
whether
Louisiana death
statute
nar
eligible
rowed the class of
death
persons
for the
specifying
circumstances, only
aggravating
mentioning
purely descriptive
plurality
sentence what the Jurek
had “con
about the
practice.
cluded”
discretion allowed under the Texas
at_,
Id.
It is idle to insist that Jurek be must overruled before Oregon’s statute can found to fall short Court’s standards. Court The has no occasion to “overrule” Jurek until another appears posture Texas case unsuit- able for denial of opinions certiorari. Court’s over the years Jurek since have arrived at a rule that the legislature substantially must narrow the eligible class of cases for the *77 crimes, remaining sentence the worst and that in this class the or sentencing judge jury also must retain some final discretion, fact, degree statutory not confined to findings of actually penalty whether to exact that from the individual defendant under the circumstances of individual case. The presented measure to the voters and did not adopted and does meet this second test.
It
a
might well be
service to invalidate this statute
now. That would
the state
give
appeal
Supreme
an
or let
sponsors
Court
of another death
measure
unavoidably require
start over. This case does not
that. In
event, given
well-nigh
with ORS
insuperable problems
163.150(1)(b)
reviewed, patently
unrepresented
here
present
analysis
defendant could not and did not
required certainty
a death sen-
evidence needed for the
may validly
imposed
be
and carried out.
tence
BY APPOINTED COUNSEL
VI. PARTICIPATION
presentation
analysis
requisite
of the
and evi
by
barred
a
needed for
valid death sentence is not
dence
by
rejection
representation
appointed counsel.
defendant’s
A
I,
Article
cannot
from his own defense.
be excluded
guarantees
11,
that “the
section
of the
Constitution
* **
right
by
heard
himself and
accused shall have the
* *
Supreme
*.” The
States
Court has held
counsel
United
recognizes
right to
Amendment
an accused’s
that the Sixth
respect.
must
Faretta v.
defend himself that the states
nia,
Califor
(1975).
2525,
95 Ct
Judicial have capital It was done. Faretta itself was not a case. this should be by Supreme prosecution Court, theft, a 5-4 for and the majority, Appeal erred in held that the California Court of pro denying request proceed Moreover, se. defendant’s may—even objection that “a State over Faretta court noted ‘standby accused—appoint aid if counsel’ to the accused requests help, available to and to be and when the accused represent accused in the event that termination self-representation necessary.” at n 46. Id. defendant’s Subsequently, con- Court affirmed a defendant’s robbery imprisonment as a recidivist over and life viction his “standby appointed objection for him had counsel” defense. McKaskle v. in his conduct his own interfered (1984). Wiggins, L Ed 2d 122 104 S Ct 465 US opinion majority held that Faretta did not Justice O’Connor’s “standby participation by counsel,” but bar unsolicited “standby objec- defendant’s not interfere over counsel” defense, confusion “mul- own create tion with defendant’s ” “destroy jury’s tiple defense,’ 177, id. at voices ‘for the representing perception himself.” Id. that the defendant is *78 presence, proceedings jury’s a trial court outside a 178. In pre- differentiating capable claims of “must be considered standby presented pro those a se defendant from sented “standby coun- counsel,” 179, the court call on id. at through objection guide court- to a defendant sel” even over procedures White, also in a trial. Id. at 184.Justices room grounds that the Court’s Brennan and Marshall dissented test allowed “standby Wiggins’s too much inter- counsel” in ference his defense. already capital They noted, these were not
As cases. any right participation did not involve court-appointed to bar or restrict capital proceeding, sentencing
counsel in a particularly legal factual bases of when the correctness of a appellate must be able “automatic” death sentence to withstand Jersey case,
review. In such a a recent New decision ruling a reversed trial court that allowed present mitigation instruct evidence in of his counsel not pre- penalty. crime and the death Because without such a discharge statutory duty, sentation the could not its nor Jersey Supreme mandatory could the New Court exercise its appellate review, the court ordered the trial court to let coun- present mitigating Hightower, sel Super evidence. State v. 214 NJ (1986). People
43,
Chadd,
A2d 482
v.
Cal
See also
Rptr
3d
621 P2d
170 Cal
cert
The same here. It would be absurd liberty, prop- “life, to hold that state denies a defendant or erty, process without due of law” under the Fourteenth assuring Amendment whenever the state insists on itself that matter) (or liberty property, it in strict life his takes his or for that any compliance with law.4If there is tension between 4The Chadd court wrote: Attorney in Faretta the defen- “The General effect stands on its head: from trial,’ adversary right criminal dant’s conceded to ‘make a defense’ ‘an Attorney attempts right no such defense General to infer a defendant’s to make cases, trial, capital But in and to have no such even when his life is at stake. above, strong reducing risk mistaken the state has a interest noted Faretta, deprives Nothing expressly impliedly,
judgments. the state of either danger erroneously imposing right sentence conclude that the a death right present insistence and a defendant’s his own confusing jury possibility defense, the tension lies Wiggins, by divergent defense,” “for the voices McKaskle *79 “standby partly concept supra. counsel,” It lies in the of which phrase quotation why present opinion keeps the is “standby ordinarily marks. For counsel” means counsel who appointed legal to advice to have been offer a defendant who rejects legal representation and chooses to conduct his own ordinarily implies “standby It counsel the defense. for defen- ” If That counsel in this case. dant. was the intended role of rejects silencing the and then advice insists on Wiggins counsel, the roles v. conflict of discussed McKaskle is hard to resolve. capital situation, case with- in a that must such review, a the automatic court can and should
stand test of appointed present arguments, legal the counsel to instruct objections, the and call and examine the make motions necessary required record, to make and it should witnesses clearly the acting jury independently is of inform the counsel permitted prevent not to the accused the defendant and is presenting defense, his own even when counsel thinks from attempt responsive requirements misguided to or the the already represented course, of the law. Of since the state is public appointed prosecutor, task of counsel in this the adversary capacity procedure would to assure effective to prosecutor’s legal against and factual test the case both requirements. procedure gone could have far toward Such avoiding many flagrant flaws in death sentence proceeding.
Competent might counsel, instance, at least have what kind of “criminal acts of violence that tried to determine would constitute a society”
continuing threat to are within or 163.150(1)(b)(B), just scope ORS how the outside required “mitigating under Court’s factors” outweighs infringement right self-representation resulting the minor require- capital subjected right plead guilty in cases is to the when to defendant’s Attorney significant It is that the General unable ment of his counsel’s consent. state, contrary.” any authority, federal that holds to cite either Chadd, 837, 844, (1981) Rptr People 170 Cal 28 Cal 3d 621 P2d omitted). original, (emphasis in footnotes Eddings questions submit- and Lockett decisions relate to 163.150(l)(b). They might jury have ted under ORS expert called, examined, and cross-examined witnesses on the statutory question majority opin- question, a that the second proof They open to in each individual case. cer- ion holds is tainly prosecutor’s wholly challenged have would closing speech improper prejudicial peroration, in his jury, upon he called to “determine whose which Koenig’s valuable; us, life and the rest of is more Jeri those society society may be, us in whatever that or this Defen- dant’s.” penalty
The three issues defined in the death law emphatically do not include whether the victim’s life is more valuable than the defendant’s. The death law would permit engage comparative valuing not lives in such a highly respected society
if a and “valuable” member of penniless burglar criminal, equally were to murder a an addicted or a prostitute. blackmailing permit It does not it in the presented *80 quote more common situation in this case. To Chief Thayer’s Justice ney’s criticism in State v. Oldsof district attor- community” speech against “conscience of the that defendant: gambler community, “That he is a anda worthlessmemberof pale true; life, be but he is on trial for his is withinthe of require law, and the courtscan dono lessthan to that the lawbe administeredin in his caseas allothers—inaccordance spirit.”
with its letter and
Today’s majority opinion agrees,
440,
19 Or at
In the submission of a “victim statement” a death sentence prosecutor’s nothing 25, The 305 Or at 180n but does about it. apparent present argument is the face of the another error on might ways to if trial court have found correct record self-important but there had been someone other than incapable, unrepresented bring defendant to it to the court’s attention.
VII. SELECTIVE SUSPENSION OF CONSTITUTIONAL STANDARDS beginning princi- 1859, From of statehood in two ples Oregon’s penal laws have been enshrined of humane place presumably beyond constitution, them the reach of legislators transitory majorities. guaran- principle, One punishment I, 15, teed “[l]aws in Article section is that for the principles reformation, and of crime shall founded on the be justice.” other, I, 16, not of vindictive The in Article section provides punishments not be and unusual shall “[c]ruel penalties proportioned inflicted, but all shall be I, Article section offense.” Ballot Measure 6 enacted provides Constitution, which aggravated law, murder, as defined shall be for “[notwithstanding of this Article.” sections 15 oppos- valid, If 40 is its is to create two section effect ing principles punishment Oregon’s criminal law. punishment practically principle all crimes must justice.” “reformation,” not “vindictive Vindictiveness argument rejected proceeding, that the the United States Court state’s family impact personal were relevant victim and the their characteristics Maryland,_US_, 96 Ed 2d 440 107 S Ct L “circumstances.” Booth (1987). The Court wrote: defendant, VIS, however, on the character and “The focus of a is not on the but family. reputation of victim and the effect on his *81 * ** sfc * any justification permitting such decision to turn on is there for a “Nor community sterling
perception than victim member of the rather that the was a questionable someone of character.8” _US at_, 2534, L Ct at 96 Ed 2d at 449-50. The footnote added: 107 S “8 implication were whose victims We are that defendants troubled deserving punishment community those more than assets to their are course, system justice worthy. perceived less Of our victims are to be whose such does not tolerate distinctions.” (citation omitted). Id. hatred,
—revenge, revulsion—may punish- not motivate the rape, arson, robbery, ment for for for for the most brutal cruelty to may women or children. Vindictiveness not moti- punishment vate the killing person, another not even for most murders. But complex when murder fits one of the murder, definitions aggravated part described in II of this opinion, civilizing restraints of sections and 16 are years, excluded. After 130 emotions of vindictiveness now are declared revenge respectable public to be basis for administration of Oregon law some cases but not in others. punishments, So are cruel and unusual safety but for the net provided by the Eighth federal and Fourteenth Amendments. cruel, unusual, Vindictive and or disproportionate punish- (absent ments are circumstances) forbidden other aggravating when a woman child, murders her husband or her her father or mother, her penalties but such are allowed when she murders both, or when the victim is officials, one of a list of or if the custody defendant was in at the time. The may state now exact cruel or disproportionate vengeance when the victim is any judge employee, or court or an officer police of the system inmate, corrections or a fellow but not if the defendant instead child, kills an officer’s wife or an legislator, agency official, or a prison employee charged with the supervision or control of inmates. See 163.095, ORS supra.
The majority says this radical difference in the Constitution’s penal principles partial suspen- created I, sion of Article sections 15 and needs to be “rational” in order satisfy the Fourteenth Amendment’s equal mandate of protection laws, because the majority perceive does not a “fundamental” interest at stake in the difference, though a defendant’s life or may depend Because, my it. opinion, other reasons invalidate the death us, sentence in the case before I pursue equal do not protection issue at length; majority’s but the treatment of the Supreme equal protection Court’s jurisprudence is quite inad- equate. The majority would have us believe that the Court would treat a distinction between some offenders that may be subjected vindictive, cruel, unusual or dispropor- punishments tionate majority of offenders who punished not be so as it would treat a distinction between plastic and paper milk containers. See Minnesota u. Clover Co., Creamery 449 US 101 Ct L S 66 Ed 2d 659 Leaf (1981).
214 seemingly example, might use a
To
farfetched
a state
punishment
aggressive
an
make sterilization
available
for
rob-
nonaggressive burglars,
for
for bur-
bers
not
cautious
or
glars
banks,
of
and not for
of
and defend
residences
robbers
hypothesis
group
each scheme on some “rational”
either
greater
pregnancy
poses a
threat
forced
to
of
women than
example
down in
other. Yet this
resembles the statute struck
Oklahoma,
1110,
535,
Skinner v.
316 US
62 S Ct
Beyond challenge to made the distinctions Oregon’s expected face, can be to on its other issues scheme “upon applied equally, the same arise whether the scheme is or Oregon terms,” Constitution, I, Article section 20.6See State (1983) (discretionary Freeland, 367, P2d 295 Or 667 509 prosecutions apply must defensible crite- decisions in criminal ria) equal course, offenders, . of of Issues of treatment similar persuasively penalty death case are hard to brief the first capital By unequal law. time selection of under the 1984 presumably demonstrated, will be late for cases can be too defendants, been this and other whose lives will have several experiment death taken in course of current with the penalty.7 remain Other issues also unexamined.8
6 I, states: Article section 20 the Constitution passed privileges, granting or class of citizens “No law shall be to citizen terms, which, immunities, upon equally belong shall to all citizens.” the same prosecutor’s system justice, particular decision In our criminal decentralized extraordinary unequally penalty may its costs to seek death affected plead willingness plea bargaining such a defendant’s addition to considerations relationship testify against accomplices, intangibles guilty like the or to even community, to the not mention turnover the offices victim or the defendant 27, Al, 1, Times, prosecutor governor. col See New York November 1986 at and of 23, A27, 1, (reporting on the col December at A17 col December 1986 at by outgoing Anaya death and the of all New Mexico sentences commutation Governor action). challenge pledge by incoming governor state and other officials Supreme reportedly spending Although years ago, one- Court five Florida’s cases, prosecutions death that result third of its time on death review Sherrill, equal with other cases that do not. See sentence cannot assure treatment Trial, Times, 6, 80, p Row at sec col 1. As Death New York November
VIII. CONCLUSION summarize:
To penalty Court has said that a 1. sentencing mandatory not be but must allow author- ity to But the 1984 death mitigating consider circumstances. judge measure allows neither the nor the decide against a death sentence even when there are facts mitigating *83 that would incline them to do so. is nor jury judge actually
This because neither the the against decides for or a death sentence as If the such. wrote, England Justice in Florida “individuals well executed for crimes similar to those committed
by
spared
penalty. Disparities
sentencing
have
others who
been
death
in
will
occur—despite
being
all the rhetoric about death
different and the courts exercis-
scrutiny
ing special
prevent arbitrariness—simply
preserve overriding
soci-
etal needs.”
State,
922,
(Fla 1980)
J.,
(England,
prepare
Witt v.
concurring).
So 2d
387
932
To
comparisons
crimes,
prosecutions
committing
of
of similar offenders
similar
of whom
not,
penalty
possible
sufficiently
some are
for the
selected
and others are
is
if
developed
potentially eligibleprosecutions
uniform and detailed records are
probably beyond
for all
but
any
Defender; yet
resources of
defendant or
state Public
of
Justice,
Department
it is needed.
burden
on the
That
should rest
of
a
not on defendant.
8
question
plebiscite
bypasses
Another
that
governor
been
has not
briefed is whether a
legislature
repeal parts
Rights
in order to
of the Bill of
and to
impose penal regime
morally repugnant
minority
a
which is
to a substantial
of citizens
compatible
obligation
republican
remains
government,
with the state’s
to maintain a
form of
IV, 4,
original purposes
Art
§
US Const
as well as with
amended
of
Or
IV,
hearings, study,
Const Art
An
§ 1.
initiative measure not
short-circuits the
adjustments
process,
legislative
Phillips,
debate and
made in the normal
v.
see OEA
87, 106-07,
(1986) (Linde, J., concurring),
represen
replaces
302 Or
acceptance killing up growing formed in combat a soldier or while public housing projects, violent streets of that he was bru- “reformatory,” child, or talized mistreatment as a in a or as prisoner war, the statute does not let a conscientious that the does not to die. decide deserve Supreme opinions they say
If the mean what Court’s leaving judgment mitigating room about for individualized qualifying after circumstances the other elements case for potential exist, death sentence are found to as reviewed dissent, then the measure Justice Gillette’s does final This court not have the meet federal standards. does question. But court finds itself word on that federal when the surely case, as much in doubt as it does in this erring we should risk the side of rather than and leave life of death it to appeal *84 to Court chooses. state to if it so its
2. The 1984measure on face also violate the suspension in its selective of the Fourteenth Amendment against guarantees Oregon vindictive, Constitution disproportionate punishments. unusual, effect, cruel, or Oregon asserts wants to maintain for most measure penal philosophy crimes the humane has been classes of respect part since 1859 but with to other of its constitution give to to of vindictiveness even offenders wants rein motives punishment dispropor- point unusual, cruel, where legally sounds, as is what the measure tionate. Harsh means. points phrase I federal constitutional with
3. these “may” court words “if’ and because this conditional although majority’s now, not have to decide them would squarely up puts to the United States such decision action Important law not be issues should Court. “mitigation” in the the federal issue. overlooked debate over particular set aside in should be death sentence This event. procedure by was tried in the this case which acceptable majority finds now and which
circuit court adequate conscientious court, doubtless was review in this for lawyers assigned judge part to advise circuit on the inadequate procedure Nevertheless, the the defendant. capital precedent for future cases. and a bad imposes penalty this court the statute The death involving duty subject conviction a death sentence each review of each review.” This means “automatic and direct require sentence, if it does not for a death even element needed adequate upon facts found at trial the court to decide anew year, many if cases each This will face such evidence. court mitigation impose juries without death sentences are bound propen- dangerous unprovoked deliberateness whenever constitutionally majority shown, thinks is are as the sities permissible. heavy is a
Review of even one death sentence case many burden; unless the cases are review of willbe unbearable legal professional care tried with as much skill and as system backlog appeals in states where the can muster. The approach longer has existed can levels where supreme judges little time for the court have conscientious many important demanding attention. The issues their other pressure as with mount to deal with death sentence review will ordinary appeals, for to examine a death sentence case preserved properly objected to, and raised trial court “error” appeal, “harmless,” as on already and to dismiss more errors by majority’s court’s treatment of the trial
shown prosecutor’s jury argument in this final failure to correct provide supra, at 211. This does not case. See 305 Or properly certainty degree imposed that a death sentence was sup- provision Supreme Court review is that the posed to assure. sym- certainty other roots than
The demand for has pathy *85 murderer, to be a convicted as sometimes seems for higher statutory thought. and constitutional standards The capital at the reflect the fact that executions for cases also public implicate the state’s citizens officials hand of a state’s many morally repugnant. It therefore not find in an act that privilege capital a defendant’s offense and to to volunteer for conviction of a adequate
prevent prosecution’s the an test of sentence, case for death as defendant did in this case. the may pre- I, Article not section Constitution open court, vent a confession to the facts in but I would hold prevents guilty plea prosecution that it when seeks the the penalty, explained opinion. death as in Part III of this A present deny right to his defendant’s own defense does not prosecution’s that the tested state the means in a assure case is professionally qualified adversary manner. That did not occur here.
4. Other issues remain on federal caselaw will which Oregon’s requires help. that the law be terms” in similar cases. This will be a offer little Constitution equal “on administered system, Oregon’s legal given unpredict- for
difficult test able incidence among extraordinary counties costs of penalty prosecutors pressures a full trial and on of death negotiate Thorough public pleas.9 and defense counsel recording comparison potential of as well meticulous prosecutions capital cases will be needed to determine actual beyond constitutional standard is met. This lies whether the the lawyers. capacity public fact, of the state’s defense already has as coun- state Public Defender sel in death asked withdraw penalty pending in this court because of cases inadequate prepare these resources to and brief intensive already proceedings top extensive vast volume price appeals. Perhaps penalty criminal taxpayers price widely high understood, not is not but will unequal allow administration. just criminal
The death is not another penalty, opinions as both the of the United States clear, own make and standards Court and our Constitution ordinary penalties adequate are not the trial and review for adequate penalty. exacting standards the death person’s hard to life are the state take a demanded before may giveway pressure of even modest maintain and under the Quinn, supra, following State v. report Legislative esti A Fiscal Office $250,000 fairly typical capital in counsel would cost almost mated that case have beyond (in dollars), assuming appeals this court were that all costs alone 1980-81 even execution, greatly include costs of trial and which denied. That all other does increase total cost.
219 Perhaps adopted Oregon’s numbers of those cases. who death penalty expected application measure its to rare event. be a nationally reported persons it is But about 2000 are awaiting including many compara- execution, scores in states Oregon, expect ble and there no reason to this state’s proportionate.10 question than bottom, share to be less is whether use At society keep reassuring can itself that means to penalty rarely, exceptional death cases and safeguarded by extraordinarily thorough procedures, at a time qualifies capital when criminal behavior offenses tragically exceptional. be has become too common to called validity
Because addition to the doubtful penalty procedure itself, death 1984 measure that led to present death, sentence of and therefore the record and procedure review, fell short of the standards that this state capital cases, set for has death sentence. I dissent from the affirmance of this dissenting. GILLETTE, J., majority today A of the court that defen- concludes process Eighth dant received due of law under the and Four- teenth Amendments to the Constitution of the United States sentencing hearing. concluding, at his In so the court inter- pretation scope “mitigating limits the factors” questions put considered in connection with three in the sentencing mitigating statute to those factors which have questions. bearing some on the The court further concludes correctly respect scope instructed with authority concerning mitigating of its evidence of circum- finally, any mitigating and, event, stances that in no evidence respect offered with he the defendant or the crime commit- ted called for further or different to the instructions actually given. than those follow, For the reasons which I respectfully disagree with the court as all three the fore- going conclusions and therefore dissent.
I present Oregon penalty statute, ORS approved 163.150,is derived from the Texas statute in Jurek (1976). Texas, 262, 2950, v. 428 S Ct 49 L 929 US 96 Ed 2d 10 USA, 15, 1988). 1, Kaplan, (February See Death 10 Nat’l L J 31 220 (The day. same other
That case was one
five decided the
153,
2909, 49 Ed
Gregg
US
96 S Ct
L
Georgia,
four were
v.
428
(1976),
Florida,
242,
2960, 49
2d
US
96 S Ct
v.
428
Proffitt
Carolina,
280,
(1976),
v. North
L Ed 2d 913
Woodson
US
Louisiana,
(1976)
2978,
96 Ct
49 L Ed 2d
Roberts
S
(1976).)
All were
96 Ct
“(2) probability is a that the defendant whether there that would constitute criminal acts of violence would commit society; continuing threat to evidence, “(3) of the if whether the conduct raised the was unreasonable killing defendant response deceased any, by provocation if the deceased.” to the 1975-1976). 37.071(b)(Supp. Proc. Ann. art. Tex. Code Crim. con- found the Texas statute Supreme Court so, however, only understanding on the stitutional. It did imposition automatically require law did not Texas murder who capital convicted person the introduc- criteria, permitted rather also fit the three but sentencing phase: during evidence mitigating tion of if has been convicted requires that a defendant “Texas law offense, separate must capital trial court conduct of a jury that tried the sentencing proceeding before the same Any guilt. issue of relevant evidence be at introduced proceeding, prosecution may present and both and defense argument against the sentence of death.” Texas, supra, Jurek v. 428 US at As 267. the court further id. at explained, 271: sentencing system
“But a that allowed the consider only aggravating certainly circumstances would almost fall providing short sentencing the individualized determina- Carolina, held in Woodson v. today North tion that we have post, 303-305, required by Eighth to be and Fourteenth system approach Amendments. For such a would the man- datory today in Woodson laws we hold unconstitutional Louisiana, post, p Roberts A 325 [footnote omitted]. jury must allowed to consider on the basis of relevant all only why evidence imposed, a death sentence should be why imposed.” but also should not be already noted, As ques- Texas statute three asked (with tions of jury, as does the Oregon statute one modifi- later). cation in the statute which I address scheme, Concerning the Texas Court concen- i.e., only trated on the questions, second the three question of the probability the defendant would commit criminal acts violence the future. This focus on the question second cannot be read as indicating Texas regarded statute would have been if constitutional it had affirmatively provided that the question of mitigating factors could be considered in connection with the *88 question, second but not in connection with the two. other As itself, just the Court said discussing before the second stat- utory question, “[t]hus, constitutionality the pro- of the Texas cedures turns on the questions whether enumerated allow Id. particularized consideration mitigating factors.” at 272. (Emphasis supplied.) And, in a page, footnote at that same the noted, specifically respect Court to this with issue: yet Appeals “The Texas Court of Criminal has not con- ** *; questions yet strued first the and third thus is as it jury’s undetermined whether not the consideration of those questions properly mitigating would include consideration of could, questions circumstances. at some the least situations however, comprehend inquiry. example, an such For the third question asks whether the the conduct of defendant was any by in response provocation to unreasonable the deceased. jury mightbe to considercircum- This construed allowthe though which, the crime not sufficientas a defenseto stances itself, enough mitigating might force to neverthelesshave penalty—a example, claim,for that a woman avoidthe death kill her wasdrivento it whohired an assassinto his continued husband cruelty cannot, however,construe to her. We power statute; courts.” is reservedto the Texas the Id. 272 7. at n foregoing that, I conclude even had there
From the develop following idea,1 u. no it to the Jurek been cases further proposition a statute which narrows Texas stands for the capital the be declared homicides kind of homicides that can pool faced then further narrows the of defendants and which by identifying aggravating penalty fac- with the three jury present constitutional, find to be is tors that the must provided permissible it also for the defendant to offer jury kind that tends to to consider evidence of statutory mitigate against an answer to the three affirmative questions. good eminent This seems to me to make sense. surely against an are that would militate There affirmative circumstances respect
finding criteria, with to the first and third although only second, one as the the second was the well (In example opinion. in the. Jurek addition discussed given respect criterion, third Court with concerning an back- that evidence offender’s seems obvious ground that his mental condi- and circumstances could show a defense under tion, while not sufficient to constitute jury might wish law, such that criminal was nonetheless guilty he of the “deliberation” which the to find that was required give an affirmative answer to find in order to majority question.) seems to concede that The also the first Jurek stands proposition. However, this limited least for majority recognize and the other that Jurek refuses to beginning day the same were cases decided Supreme odyssey area the death Court authority scope respect with to it. requirement mitigating specific fac- Jurek question respect in the with to the second be considered tors cases, demonstrates, including one were such that follows there As material Texas, 38, 100 Ct 2521, 65 statute, L 2d 581 involving S Ed Adams US Texas (1980). *89 question Texas statute was written into the second when Oregon reason, the adopted approach. Texas For some the drafters of the referendum seem to have concluded mitigating inquiry pertinent only the factors was with respect questions put to the of the three second to to the already demonstrated, As I think I have does jury. Jurek think, I say Neither, that. do cases decided after Jurek imply that this is all that Jurek stands for. About the argument Ohio, the contrary to would come from Lockett v. 438 US (1978). S case, 98 Ct 57 L Ed 2d At one in that point plurality, referring Gregg the Court group cases, say had this to about Jurek:
“* * * Juj-gfc involved a Texas statute which made no explicit Rather, US, mitigating reference factors. 272. required questions was to answer three in the sentencing process, the which second of was ‘whether there is probability a defendant would commit criminal acts of violence that would a continuing constitute threat to soci- * * * ety.’ petitioner’s Eighth statute survived Fourteenth Amendment attack because three Justices con- Appeals cluded that the Texas interpreted broadly Court of Criminal had question—despite the second its facial nar- permit rowness—soas to the sentencer to consider ‘whatever mitigating circumstances’ might the defendant be able to show. of the we None statutes sustained [Citations omitted.] in Gregg companion clearly operated and the cases at that prevent any time considering aspect sentencer from any defendant’s character or and record circumstances of independently his mitigating offense as an factor.” Id. at merely description 606-7. The foregoing is specific that, issue Jurek addressed. It in no sense intimates had the issue squarely presented, been the Court would not have held also that mitigating circumstances had to be consid- any purpose might ered for other lead conclude imposition Other inappropriate. (and statements plurality consistently made Lockett conclusion, upon opinions) relied in later lead me to this same viz., that mitigating circumstances must be considered jury without limitation in order for the to be constitu- statutes tional: “* * * Eighth conclude that the and Fourteenth [W]e require sentencer,
Amendments that the all but the rarest case, capital precluded kind of not be from [footnote omitted] mitigating factor, any aspect as a considering, of a defendant’s of the circumstances of the character record proffers as basis for sentence offense that * * * *90 pre- less death. statute that than omitted.] [A] [Footnote indepen- capital giving in all vents the sentencer cases from mitigating weight aspects to of defendant’s character dent proffered in circumstances of offense record to the risk will be mitigation creates imposed spite less in factors which call for a severe * *” * penalty. (emphasis original). Id. at in 604-5 plurality sug- in Lockett These statements “mitigating role circumstances” an even broader gested in circumstances” implied “mitigating the role Jurek: than an might jury lead a to conclude that included facts that ought receive a death-eligible defendant to sentence otherwise death, be to con- jury empowered and the had to so less than is, statutory and whatever whatever scheme clude. That a affirmatively established that the evidence spare the defen- death-eligible, had to be free was him sparing evidence satisfied the dant if other would just. made what the absolutely plurality
Later cases clear cases, a each of later opinion implied. Lockett had these plu- joined adopting the full Court Lockett majority rality approach. Oklahoma, Eddings was
The first of these cases (1982). 869, L The defendant 104, S Ct 71 Ed 2d US who, youth compan- several 16-year-old a with Eddings was ions, Their car subse- away their Missouri homes. ran from Highway an quently stopped by was officer Oklahoma a He shotgun. shot and killed the officer with Eddings Patrol. of murder charge was to adult court for trial a remanded degree. the first statute, Okla. Ann. tit.
The Oklahoma Stat. § (West fac- 1980), aggravating included a list of seven 701.12 impose determining whether or tors to be considered factors, alleged penalty. among From those was the death especially fit it was Eddings murder committed three: that the cruel, heinous, purpose it was committed for the atrocious or a lawful arrest and there was avoiding preventing probability that the defendant would commit criminal acts of a continuing society. violence that would constitute threat (5) (7). 21, 701.12(4), Okla. Stat. Ann. tit. § In mitigation, Eddings presented substantial evi- dence at the that he had hearing par- led troubled life. His quite ents had been divorced when he was He had lived young. with until he during his mother was which time he received supervision. and, little or no an mother was alcoholic possibly, prostitute. to live with his father age Sent at the continued be out of Eddings control. The form of discipline impose physical the father was able to was punish- ment. Other evidence indicated that Eddings emotionally disturbed in general, develop- that his mental and emotional years ment were several age, below his that he had a sociopathic personality antisocial and that approximately thirty percent youths suffering from such a disorder grew out of it they aged. Other suggested pos- evidence also *91 sibility of reformation. evidence, (who
At the conclusion of the the trial judge responsible sentencer) was the weighed the evidence of aggravating mitigating circumstances. He found that the proved state had the aggravating circumstances. As to the circumstance, however, mitigating the court made it clear that it considered the youth defendant’s to be only pertinent mitigating circumstance and that such a circumstance could not outweigh the aggravating present. circumstances The judge sentenced Eddings to death. The case eventually reached the Supreme Court.
In its majority opinion, the Supreme
began by
Court
quoting from the plurality opinion in Lockett quoted earlier in
this opinion
«* * * rule in Lockett followedfrom the earlier deci- [T]he sions of the capital Court and from the Court’s insistence that punishment imposed fairly, be and with reasonable consis- tency, By requiring permit- or not at all. that the sentencer be ted to person focus ‘on the characteristics of the who crime,’Gregg Georgia, supra, committed the v. at the rule * * * * * * recognizes ‘justice requires in Lockett that there be taken into account the circumstances of the offense together propensities with the character and of the offender.’ By holding capital that the sentencer [Citation omitted.] permitted mitigating be cases must factor, consider relevant recognizes consistency pro- rule in Lockett that a by ignoring false duced individual differences is a consis- tency.” Oklahoma,
Eddings supra, v. 455 US 112. rule proceeded apply The Court then in Lockett to the case before it. Court first noted that both trial judge Oklahoma the Oklahoma Court Criminal no Appeals mitigation had found that evidence save that con- youth of the defendant was because no cerning pertinent provide legal other evidence tended to excuse from criminal responsibility. said, The Court placed by upon “We find these courts limitations they rule mitigating evidence would consider violated the may by in Lockett. Just as the State not [Footnote omitted.] considering any mitigat- preclude
statute the sentencer from factor, consider, ing may as a neither the sentencer refuse to law, any mitigating In this matter relevant evidence. instance, judge if had it the trial instructed Eddings proffered on his disregard mitigating evidence sentencer, Appeals Criminal behalf. The and the Court of review, may miti- weight given determine the to be relevant they may give weight exclud- gating evidence. But no ing evidence from their consideration. such [Footnote omitted.] Eddings we offered was
“Nor do doubt that the evidence years Eddings youth of 16 mitigating relevant evidence. was a family his- at the time of the murder. Evidence of difficult tory typically introduced of emotional disturbance California, See 402 US mitigation. defendants 183, 187-188, McGautha (1971). Ct 28 L 2d S Ed 711] [91 cases, properly given weight. little some such evidence years But the defendant was 16 old at the time of when *92 can no that evidence of a turbulent offense there be doubt father, history, of family beatings by of a harsh severe particularly disturbance is relevant.” emotional illus- foregoing fully at in The (Emphasis original.) Id. 113-15. widely net of “mitigating trated time how first Amend- Eighth under the Fourteenth circumstances” ments in the view of the Court. sweeps, line of next case this cases significant 1669, Carolina, 1, 106 L Ed 2d US S Ct 90 Skipper v. South 476
227 (1986). case, 1 In that the defendant had been of convicted capital murder and rape, and sentenced to death. At sen- his trial, tencing defendant offered but the trial court excluded testimony jailers and regular regarding petitioner’s visitor good during behavior the seven months he had spent jail trial. awaiting appeal, argued On he this evidence was in mitigation punishment evidence that should been have considered in determining whether he should receive death penalty.
The Supreme agreed. Court Speaking for six mem- Court, wrote, bers of the Justice White disputing “There is no Court’s decision ‘ * ** Eddings requires capital cases, “the sentencer mitigating factor, any aas precluded not considering, from aspect of a defendant’s character or record and oil proffers circumstances of offense the defendant aas ’ Eddings, supra, basis for a sentence less than death.” 455 Lockett, US, Ct, supra, US, at (quoting S at 874 Ct, J.)) at (plurality opinion S at 2964 Burger, C. (emphasis in original). Equally corollary clear rule that the sentencer precluded refuse to consider or be from considering ‘any mitigating relevant evidence’ omit- [citation ted].” Carolina,
Skipper v. South
supra,
“The exclusion the state trial mitigat- court relevant ing impeded ability sentencing jury’s carry evidence out considering its task of all relevant facets of the character and resulting record of the individual offender. The death sen- * * tence cannot stand Id. at 8. year later, yet
One a unanimous court reversed another penalty by relying Skipper/Eddings/ death on the analysis. case, Dugger, Lockett line of In that Hitchcock 393, 107 (1987), US Ed S Ct 95 L 2d 347 13-year-old girl. of a strangulation was accused *93 228 eventually variety that reached appeals
Throughout Court, advisory argued he that Supreme States United (which procedure sentencing judge was the followed and jury Florida) precluded by law from consid- improperly had been that had mitigating evidence of circumstances ering certain the evidence offered The Court described been introduced. in mitigation: case, petitioner’s counsel sentencing phase “In the a child advisory evidence that as introduced before the gasoline petitioner inhaling habit of fumes from auto- had the so; tanks; passed doing he had out after gas once mobile wander; petitioner had thereafter his mind tended family its poor children in a that earned been one of seven cancer; cotton; died of living by picking that his father had petitioner fond uncle to had been a and affectionate * ** argument to the of his the children of one brothers. advisory referred to various consid- jury, petitioner’s counsel dispute, erations, subject of factual some were the of which inappropriate: petitioner’s youth making a sentence of death murder), (he signifi- his innocence of was 20 at the time of behavior, activity the difficult prior or violent cant criminal potential his rehabilita- upbringing, his circumstances of * ** voluntary In con- tion, surrender to authorities. and his trast, prosecutor consider told that was [to circumstances, statutory mitigating and no others certain impression his judge reinforced this the trial instructions] [*] * * ” at__A
Id. Justice Court, through speaking unanimous Scalia, reversed, stating: advisory jury
“We think it could not be clearer that consider, sentencing judge and the was instructed not consider, nonstatutory mitigating cir evidence refused to cumstances, proceedings did not com and that the therefore Carolina, v. Skipper South port requirements 476 with the (1986), Eddings 1669, 1, 90 L Ed 2d US 106 S Ct Oklahoma, (1982), 104, 102 2d 1 S Ct 71 L Ed 455 US Ohio, L Ed 2d 973 Lockett v. 98 S Ct 438 US * * * (1978) In the of such show (plurality opinion). absence mitigating evidence of ing that the exclusion of our cases hold See invalid. at issue here renders the death sentence the sort (evidence adapted well to supra Skipper, that defendant had supra (evidence life); Eddings, 16-year-old defen prison [**] dant’s troubled [*] family history and emotional disturbance). Id. at Court has thus with increasing clarity juries
established that must permitted to choose a sentence than less death based circumstances, mitigating just apply those that directly particular to a statutory state’s criteria for death qualification. This rule has emerged from dealing cases with a variety wide of statutes involving one *94 virtually (the Jurek) identical to Oregon’s Texas statute in (the and one designed the same mold Oklahoma statute in Eddings.) way in which the majority deals with the cases
that I have discussed is instructive as to the majority’s narrow (and, think, I incorrect) constitutionally reading of those deci- sions and requirements process. of due
Concerning Eddings Oklahoma, the majority states as follows:
“* * * Eddings, the Court had it before a statute that had been construed the state court as excluding considera- tion family of the defendant’s history,’ ‘turbulent ‘beatings by father,’ harsh problems’ and ‘severe emotional connected with having neglectful, ‘been raised in a even family violent back- ground.’ Despite the fact that certain commentators cited in Justice vitality question Linde’s dissent in this case the continued Jurek Eddings, because of we nothing find to indi- cate that the Court of the United agree- States is in ment with those commentators.
“We do not construe our statute to exclude evidence of the
kind of
Eddings.”
factors mentioned in
I respectfully suggest the foregoing quotation focuses on the wrong questions and, any event, gives the wrong me, answer. For least, Eddings should not be viewed as a case questioning validity assume, of Jurek. I as does the majority, that Jurek good is still law. But Jurek was a case that focused on the permissibility constitutional of a particu- lar statutory method creating a class of death-eligible defendants. Eddings, hand, on the other was a case that assumed the constitutionally permissible creation of such a class and instead focused on those matters that a jury had to permitted to consider in determining whether a member of actually be executed. As to death-eligible class should is my one with which dissent question—the
that second say no more than majority will concerned—the practice for that it would be the better “We consider particularity jury it is to court to instruct with trial respect arriving at mitigating its consider evidence with ** questions all three answer to at 167. 305 Or contrary, my law hope as I review the case
To establishes, required jury’s consideration scope both the authority con- pursuant evidence and its to that mitigating majority acknowledges. are than the sideration broader Indeed, may fairly majority one ask how believes family history,” harsh “beatings evidence of “turbulent father,” a neglectful, “been raised in even violent having have to do three family background” anything with I questions Oregon to be to the under law. submitted and, they they do if do not but are respectfully submit that (as majority law nonetheless admissible under something respect has to be with acknowledges), told only thing it to do with the information. The could what *95 authority is it to answer one be told that has constitutional (in “no” the fact that statutory questions spite of the three answer) thereby justify “yes” a other evidence would he a defendant from the death reprieve death-eligible would, of receive—an instruction which otherwise would course, from the statute. depart Car- Skipper v. South majority also dismisses
olina, supra: “[Skipper] no to that a does inore than rule aspect mitigating any
must allowed to show as a factor any the circumstances of the his character or record and proffers as a for that the defendant basis a sentence offense words, must In other the sentencer be allowed less than death. any That mitigating relevant evidence. is what our to consider statute allows.” at 161.
305 Or quoted already major- from
Again, language other statement. else is inconsistent with this Whatever ity opinion if a does, question: is to answer this majority obligated it jury evidence, must consider mitigating including mitigat- all ing any evidence that apparent relationship does bear to answer, statutory questions the three jury must what is the jury to do with such evidence is range and what of its authority? is particularly It difficult to understand what the majority means it when refers to evidence “that the defendant proffers as a basis death,” sentence less than unless believes the has to in play some role addition answering to the three questions.
The majority says also nothing explains why that Dugger, Hitchcock v. supra, require does not the result for I argue. which The majority simply says, respect with to that case: case,
“In law, arising that under judge Florida the trial instructed the not to consider mitigating evidence of specifically circumstances not enumerated in the Florida stat- respondent ute. The had, Supreme asserted the Florida Court conviction, in petitioner’s a decision postdating held that the sentencer was not limited consideration of the statutory mitigating circumstances. The Court held that because the record judge disclosed the trial case before the Court had assumed the limited statute the evidence it, limited petitioner that couldbe received and entitled to a new so had was resentencing proceeding lesser sentence. “We nothing discover in Hitchcock that is conflict with apply the decision scheme.” Jurek or that would to the atOr 161. Again, inasmuch continuing vitality as the of Jurek point, not the crucial the majority’s respect comment with help. that case is of no With respect the balance of the majority’s description Hitchcock, one away comes with the impression majority all believes that Court did judge rule that the trial case had my somehow made mistake under Florida law. As earlier *96 indicates, however, discussion of the case a decision was holding constitutional decision failure of the trial permit court to to jury mitigating consider certain circum- stances not as relating any identified to circum- aggravating stance under Florida law was error of constitutional Surely, dimension requiring the vacation of a death sentence. to the ruling apply Oregon that constitutional “would scheme,” to the scheme of other state. or upon focus whether majority’s
The insistent point, overruled misses this with the result Jurek has been Oregon statutory scheme is at odds that its construction of summary, rules. I believe that present with constitutional misapplies and the line of cases majority misunderstands running Eddings, beginning through Skipper with Lockett and cases, to the kind of Dugger. regard All of those without a a they deal, statutory require scheme with which any mitigat hear sentencing proceeding permitted to the offense relating to either the offender or ing circumstances evidence, upon that to chose permitted, and further be based from the death-eligible an otherwise offender reprieve rule, I important part about this supreme penalty. The most from a proceeded its is that development, have described opinion Dugger. opinion in Lockett to unanimous plurality difficulty in deal great Court has had Although the see, e.g., ing aspects penalty, other of the death with 1756, 95 L 2d 262 279, 107 Ct Ed McCleskey Kemp, v. 481 US S death) (1987) (racially disparate impact of sentences 546, 98 2d Ct L Ed Phelps,_US_, v. 108 S Lowenfield suffi (1988) defining capital murder (degree to which statute defendants), it has death-eligible ciently pool narrows the of this unanimity development achieved remarkable penalty doctrine.2 of the death part
II necessarily requires holding foregoing of the None on its statutory scheme is unconstitutional permit so construe the statute as This court could face. instruc- require an evidence and mitigating admission of all scope authority of the delineating jury’s tion to the defendant on the basis death-eligible otherwise reprieve an that evidence. Phelps, language majority’s 305 Or from reliance on certain Lowenfield nothing mitigating circum to do with the role That case had 165 is untenable. only: specifically it was faced with two issues said The Court
stances.
Lowenfield
may validly
upon single aggravating
“[wjhether
circumstance
rest
sentence of death
murder,
underlying
first-degree
necessary
offense of
is a
element
at-,
jury.”-US
judge
verdicts from the
had coerced
sentence
whether
(1988).
S
I not here solution. One perhaps that, solution be if jury would to instruct even questions concludes that all three statutory should be “yes,” answered it nonetheless should answer one of them it unanimously “no” unless concludes that the evi- mitigating dence not call for a A penalty. does lesser second alternative might jury fourth, constitutionally-required have the answer a question statutory after the three considering ones: After all evidence, mitigating unanimously does the still con- prisoner death, clude put that should be to rather than spared? majority But the has offered no or lan- suggestion guage would be consistent both with the statute and with requirements. the constitutional true, recognizes,
It as the doubtless majority to give statute some I construction such as the ones have probably require described would the sentence in this case be vacated and the be matter remanded for resentencing. appears That to price me be a small to pay establishing for set of statutory and permit constitutional directives trial courts in the future to constitutionally conduct sen- adequate tencing proceedings that would case-by-case avoid future eval- piece uations toas which statutory evidence satisfied which constitutional If people criteria. this are state and/or receive reliable penalty, they enforcement death deserve aspect to have this statutory fully explored scheme its constitutional limitations declared now.
Ill pertinent instructions three statutory questions and the role of mitigating evidence were so brief that they may set be out here in full: guilty
“The aggravated defendant has been found provides aggravated murder. law that the for imprisonment. murder shall either—be either or life imprisonment You imprison- must assume that life means ment rest of the life. defendant’s You are not to con- any possible meaning sider or discuss other of life imprisonment. questions you will given
“You must three answer ‘yes’ either question ‘yes’, Before can ‘no’. be answered jurors all agree. jurors must If agree twelve all twelve cannot question ‘yes’, question that a should be answered then the questions your answering must be answered ‘no’. upon must the evidence received answers be based you. upon giving I am the instructions which now case question first the law is: “The asked Wagner Jeffrey that caused the “Was the conduct of Scott deliberately with the Koenig death of Jeri committed Koenig would expectation reasonable that the death Jeri result? ‘deliberately’ mind in this case means the act of
“The word contemplated act which examines and considers whether deliberately One when one should or should be done. acts state, circumstances, acts in such cool mental under such *98 permit weighing period and for such a of time as to careful law, however, prescribe proposed The not the particular decision. does period of time for deliberation. question
“The second is: Jeffrey Wagner probability that would “Is there a Scott constitute a con- commit criminal acts of violence that would society? deciding question, tinuing the second threat likely is probability occurrence of an event more means the of the defen- than Here the event is the chance occur. Probability does committing dant criminal acts of violence. of the event is certain. not mean that the occurrence you any mitigat- determining issue shall consider “In including, lim- ing but not received in evidence circumstances severity to, age, of the ited the the extent and defendant’s prior the men- criminal and the extent of defendant’s conduct pressure under the defendant was tal emotional which acting killing was committed. time the by question the law is:
“The third asked killing Jeffrey Jeri Wagner Scott “Was conduct any, provocation, if response Koenig unreasonable Koenig? Jeri you, you are to considering issues submitted to
“In you in this trial. You of the submitted to consider all evidence you according to weight give evidence such decide shall of the court. the instructions beyond prove a reason upon is the State to “The burden to you. submitted each of the issues the affirmative of
able doubt perti- of the construction majority’s Even under were these instructions requirements, constitutional nent jury specifically deficient. The was instructed mitigating respect could circumstances consider with question. part second That is not the law. As the discussion jury given greater shows, I of this dissent must be far mitigating jury latitude in its use of circumstances. This affirmatively authority misled toas its under the constitution. permitted upon jury No sentence of death should be to stand woefully incomplete. instructions so defendant has not been accorded a inaccurate and This
sentencing trial even approaching required Lockett/Eddings/Skipper/ Dugger line of cases.
IV majority might argue my that, even if under- standing requirements my of the constitutional is correct and given taken, criticism instructions to this well overwhelming evidence in this case is so one-sided and any error committed would be harmless. For reasons that satisfactorily follow,I do not think that “harmless error” dis- poses of this case. place, concept In the first of “harmlessness” is quantify Oregon’s difficult to in the context of first death case. When all one knows that the was never correctly scope authority, any specula- advised as to the respect of its properly-instructed jury tion with to how a would have performed highly prob- new its and difficult task becomes *99 lematical.3 argument
The second to be made is that there is mitigating evidence in which, this record of circumstances sparse, generated appropriate however should have instruc- began tions. The evidence shows that this defendant difficul- early age, displayed ties with the law at an of evidence mental instability through attempted life, most of his at least twice required suicide, have felt to turn to violent behavior as objection any Normally, regard No was made to I instructions in this case. would any However, disposing respect posture that as concern with to the instructions. present proceedings of the as first death case to tried under the new statutory defining scheme seems to me to call us to in for exercise the widest latitude jury person seeing goes what a court should instruct that no to his her or jury adequately dignity any life, death unless a was instructed. The even that human legitimately end, which a state determines that it is entitled to at this deserves least degree formality and rectitude. settings response in which he found himself to institutional significant early activity, has made some
because of criminal employed, significant remain has artis- to become and efforts relatively ability, average intelligence is and is still tic young. of above trying suggest case, I that, were I this mean to I do not (whether any foregoing considerations would find collectively) individually overcoming the state’s viewed questions respect or as to each of the three evidence with independent reprieve justification from the death for my penalty. is, instead, function. It That decision jury appropriately-instructed under the of an function jury statutory this evidence. No such has considered scheme. appropriately-instructed second, do A One should so. might did case. conclusion as this reach the same However, will constitutional rules have then and then any subsequent execution be entitled been observed profound respect degree should which such action a nation of laws. receive in dissenting expressed in this
For all of the reasons sentencing proceeding opinion, the defendant’s I believe that constitutionally Accordingly, I infirm. would vacate and remand the case to the trial court for of death sentence sentencing hearing or, of the district attor- at the election new ney, imprisonment. entry of life Because of a new sentence contrary respectfully majority conclusion, dis- I reaches a sent. making. point me to be worth further seems to
One applied degree effort with the of conscientious No one familiar ques- fairly by every could member of this Court to this case opin- expressed by sincerity each of the of the views tion the opinions. to those case or those who adhere ions intelligence judges However, of reasonable the fact diametrically opposed integrity views reached such can have mitigating respect cir- crucial as the role to an issue as with play sentencing constitutionally required are cumstances Oregon’s proceedings how like demonstrates under statutes the United States Court of it is that the desirable accept good faith similar case. The of this or some review matter; disagreement small is no that exists this Court literally hope quite that that stake. I would are human lives justices, newly complement would Court, with a full blessed *100 yet perceive in this area work be done that there is law would complete constitutional set about to that work forthwith.
I respectfully dissent.
Linde, J., joins opinion. this dissenting notes co- pleaded defendant of Rathie had guilty to the indictment charging degree first murder and had been executed. Those two do cases not discuss whether in Oregon plead guilty one could a capital crime, but both instances defendants who did so were executed. We conclude there was neither nor statutory prohibition common-law of a such plea. We come then to this defendant’s contention that the I, 1932 amendment of Article section Con- abrogated power plead. stitution of a defendant so to legislature We commence what the determining people accomplish by sought 1932 amendment. The text a prohibit plea guilty amendment does not case; capital provides if one tried wishes to be capital trial charge jury. background must be to the amendment convinces us people did not have statutory and common-law rules that one abrogating mind guilty any charge. plead could Pamphlet The Voters’ for “Constitutional Amend- Oregon, to Be Submitted to the Voters of ments and Measures Election, 8, 1932,” 5, contained page General November this: “(On Ballot, 303) Nos. 302 and Official “AN AMENDMENT I “To section of Article of the constitution of the state Oregon, legal submitted to the electors of the state to be approval rejection regular general for their at the elec- 8,1932; proposed by thirty- tion to be held November sixth filed in the office of the legislativeassemblyby joint senate resolution No. secretary February of state 1931. following designation “The is the form and numerical printed proposed amendment as it will be on the official ballot: - People Amendment Referred to the “Constitutional Legislative Assembly Vote YES or NO “AMENDMENT TRI- AUTHORIZING CRIMINAL BY ALS WITHOUT JURIES CONSENT OF - Purpose: provide accused ACCUSED To