*1 7, 1991,judgment affirmed as to all defendant’s Argued and submitted November convictions, circuit vacated and case remanded to court of death sentences proceedings further March OREGON, STATE OF Respondent, WILLIAMS, RAY JEFFERY Appellant. S36193)
(CC 88CR-1815; SC P2d 1006
20-a *3 20-b cause and filed Portland, Groom, argued
David E. for appellant. briefs Salem, General, Attorney Metcalf, Assistant
Janet A. brief were With her on the respondent. the cause for argued Linder, L. General, Virginia Attorney Dave Frohnmayer, Peterson, Assis- and Brenda J General, Ann Kelley Solicitor Andrus, Certified General, S. Stephanie Attorneys tant Student, Salem. Law
GRABER, J.
Peterson, J., dissenting opinion. filed a J., dissenting opinion. filed a Fadeley, J., in which Fadeley, Unis, J., dissenting opinion filed a Peterson, J., joins part. joins
21 GRABER, J.
This case comes before us on and automatic direct judgments aggravated review of of conviction of murder and 163.150(l)(f) (1987). sentences death. ORS reversal of his aggravated seeks convictions of murder. alternative, he asks this vacate his court to sentences of death remand and his case to circuit court for a new penalty trial. Defendant also seeks reversal of convictions his phase convictions, crimes.1 We affirm defendant’s noncapital vacate death, his sentences of and remand the to the case circuit court for further consistent with this proceedings opinion. OF FACTS
I. SUMMARY we Because the found defendant review guilty, state. in King, the facts most favorable to light (1989). 332, 339, P2d 391 This case involves the German murdering young second defendant convicted two in the States. The women who were on vacation United Oregon were from California to when hitchhiking women met Simonsen. Witnesses testified defendant David they defendant, Simonsen, and the two women saw they 31, 1988, the the women were day on together August witness defendant and Simonsen murdered. Another saw women, but with the women’s day later that without two found in of the two women were The bodies possessions. were bound nude They secluded in Coos spot County. shot the head close the waist down and had been from to hav- Simonsen confessed shotgun. with sawed-off range sentenced to He pleaded guilty shot women. ing (1990) Simonsen, P2d 241 death. See State v. Or sentences). (reviewing contained against
The defendant indictment The state’s counts, murder.2 including aggravated 6 counts 12.10(2) provides: ORAP forming “If, aggravated basis a conviction for murder addition to arising charges sentence, from of one or more defendant is convicted the death jurisdiction instrument, Supreme charging shall have Court the same appeal.” filing any of a notice of such without review conviction theories, aggravated charged different murder three with Defendant was killing charged each woman. separate counts with and, theory, each he was under victim in murder was “more than one murder where there three theories were: 163.095(l)(d); “in an effort to murder committed episode,” ORS criminal the same *5 of the case was that defendant had ordered theory Simonsen women, or, least, to shoot the two had actively participated in their deaths. The state offered evidence that defendant Simonsen, exercised an inordinate amount of control over “robot”; to him at times as his that defendant had referring made statements to other witnesses himself implicating murders; that, murders, defendant pos- after sessed some of the victims’ property. aggra
Defendant was convicted of four counts of murder, two counts of murder, felony vated two counts of murder, two counts of first degree to commit conspiracy a convicted felon in and one count of being kidnapping, phase, of a firearm. the penalty possession ORS to the three “yes” questions posed answered 163.150(1) sentences of (1987), and the trial court entered death. GUILT PHASE
II. ERROR ASSIGNMENTS OF Felony Counts Aggravated A. Motion to Dismiss of Murder the trial court’s as error first assigns were murder counts that the aggravated failure to dismiss 163.095(2)(d), ORS murder Under theory.4 on a felony based crime, identity perpetrator of of to conceal the of a or conceal the commission crime,” 163.095(2)(d). murder, 163.095(2)(e); felony aggravated ORS ORS murder, conspiracy commit ORS charged of with two counts Defendant was also 163.235(l)(c); count of 161.450; degree kidnapping, and one ORS counts of first two 166.270(1). firearm, possession ORS of a convicted felon sentences, exception of with the held that all convictions The trial court firearm, merge into being possession of a would felon in a convicted the conviction — one for each aggravated of death murder and two sentences two convictions — if the case were affirmed would be dismissed convictions and that the other victim procedure. of that express opinion as to the correctness appeal. no We
committed “ ‘[Aggravated murder’ ORS <<**** 163.095(2)(d) provides: under, * accompanied means murder by, any as defined ORS following circumstances: 163.115 which “(2)(d) 163.115(l)(b), personally and Notwithstanding the defendant ORS in ORS set forth under the circumstances intentionally the homicide committed 163.115(l)(b).” 163.115(l)(b) part: provides in ORS must commit the murder Defen “personally.”
the defendant the aggravated felony the trial court to remove dant asked consideration, contending from the jury’s murder counts not commit the murders because Simonsen personally, he did The trial court trigger. evidently admitted to pulling defendant’s motion for granted judgments because agreed, on those counts at the end of the state’s case-in- acquittal .5 There is no error about which to complain chief. Evidence Sufficiency B. Murder
1. Aggravated the trial court argues improp Defendant next *6 on all counts judgments acquittal denied his motion erly Defendant the state did argues murder. aggravated the to find that sufficient evidence to permit not produce defendant the crimes charged.6 Specifically, he committed circumstan entirely he not be convicted on may asserts that at the evidence; no evidence that he was tial that there was 163.125, consti- “Except provided in 163.118 and criminal homicide as OES tutes murder: <<* [*] * * * “(b) acting person, with one or a either alone or When it is committed following attempts any persons, to commit of the crimes
more who commits or committing person is or and in furtherance of the crime the and in the course of therefrom, commit, flight person, during the or attempting the immediate or person any, other than one of participant if there be causes the death of a another participants:
<(* “(E) [*] * * * Kidnapping in the second degree as defined in ORS 163.225;
[*] * * * “(G) 164.415; Robbery degree defined in ORS in the first “(H) degree chapter[.]” Any felony first defined in this sexual offense 5 felony aggravated Although murder the counts of the trial court removed jury. Only felony go jury, simple murder counts to from the it did allow requirement had to aggravated felony that defendant murder statute contains 163.095(2)(d) with ORS “personally.” Compare ORS commit the murder 163.115(l)(b). jury’s assign consideration does not error to Defendant simple felony murder counts. provides part: ORS 136.445 acquittal] judgments if the evidence grant [for the motion “The court shall against support verdict a such as would
introduced theretofore is prosecution for the same acquittal be a bar to another shall defendant. offense.” murders; and that there was no scene at the time of the kill the women evidence that he either ordered Simonsen to in the actively participated killings. challenge on a that the evidence of a crime is ruling defendant, have a
insufficient
for the
convicted
whether, after
the evidence in the
viewing
relevant
inquiry
state,
a rational
trier of fact could
most favorable to
light
elements of the crime
have found the essential
Walton,
State
223, 241,
P2d
doubt.
311 Or
(1991).
argument
court has
defendant’s
rejected
This
can never be suffi
circumstantial”
“entirely
evidence
Lerch,
to convict. See State v.
377, 396,
296 Or
cient evidence
((1984) (“It
was the intention of this court
2. Sexual Attempted instruc- error to the trial court’s assigns Defendant attempted the crimes of that it could consider tions to the abuse degree first sexual attempted first degree rape based murder theory both the aggravated crimes underlying of a separate of the identity perpetrator of the on concealment counts, 163.095(2)(e), felony murder and on the crime, ORS 163.115(l)(b).7 not argue does ORS crime of a aggravated on concealment murder based Defendant assumes commission, identity whose or the underlying requires proof crime whose *8 instructions stated the Rather, law he incorrectly. argues that there was insufficient evidence to justify instructing on jury underlying those crimes.
We need not consider whether there was sufficient evidence of first attempted degree because rape, the verdict form shows that did not jury agree unanimously state had proved attempted first The degree rape. trial court instructed the jury that it must agree unanimously on all underlying crimes. It follows that did use jury first as an attempted degree rape crime in underlying any defendant’s convictions. Even it was assuming error to instruct attempted rape the first degree, there- fore, any error was harmless.
The
did find
attempted first
sexual
degree
abuse
to
an
be
crime in some of
underlying
convictions;
defendant’s
therefore, we consider whether
there was sufficient evidence
of that crime. For evidence of an
crime
attempted
sufficient,
the evidence must
permit
rational
conclusion
that defendant
in conduct
intentionally
engaged
that consti
tuted a substantial
toward the commission
step
Walters,
80, 84,
crime.
charged
804 P2d
(1991).
cert
den_US_,
2807, 115
111 S Ct
L Ed
2d
step,
To constitute
a substantial
the act must “advance the
* * *
criminal
some
purpose charged
provide
and
verification
of the existence of that
The ORS pertinent that: provided
“A person commits the crime of sexual abuse the first degree person: when that
“(a) Subjects contact; person another to sexual <<$ * * * * “(B) subjected The compulsion victim forcible * *
the actor *.”
The evidence in case is permit sufficient intentionally engaged rational conclusion that defendant toward com that constituted a substantial step conduct The relevant evidence mission of first sexual abuse. degree attempting the correct- perpetrator, to conceal. We do not address the murderer here, ground. assumption because decide the claim on another ness of that we Their were victims’ bodies. hands includes photographs nude from the waist backs, they behind their were bound off underpants with their pants pulled completely down were around the other ankle. victims one and down leg *9 had head. A backs and each been shot the on their lying defendant removed victims’ juror could find that the rational from or them to so. the victims naked Leaving forced do pants a toward waist can constitute “substantial step” the down victims’ Removing of sexual abuse. the commission criminal sexual forcing also advanced the clothing purpose of that verification of the existence contact and provided to evidence for rational jurors There sufficient purpose. doubt that defendant committed infer a reasonable trial did not err in sexual abuse. The court submit- attempted to the jury. ting question
C. Admission Photographs While Alive Victims Photographs of
1. admitted court into During guilt phase, trial they evidence victims taken while photographs several of those challenged were alive. Defendant admission motion, chal in a and he renews that photographs pre-trial were irrelevant8 photographs here. He claims that lenge them admitted and that some of were unduly prejudicial9 The court an statute. trial to unconstitutional pursuant admitted various for different reasons. photographs ORS pursuant
Exhibits 38 and 39 were admitted 41.415, which provides: homicide, any photo-
“In for criminal a prosecution alive shall he admissible evidence graph of the victim while by attorney general to show the when offered district victim while alive.” and condition of the appearance added.) (Emphasis provides: OEC “ any tendency having make the evidence’ means evidence ‘Relevant action any consequence to the determination existence of fact is of probable would without the evidence.” probable less than it more or provides: OEC 403 relevant, may probative value is if its “Although be excluded evidence danger prejudice, outweighed by of unfair confusion substantially delay issues, by undue or needless misleading jury, considerations of or or presentation of cumulative evidence.” The attorney district offered Exhibits 38 and 39 to show the and condition general alive; of the victims while appearance each showed one of the victims. photograph only
The of an murder guilt phase aggravated trial 163.005, for criminal homicide.” ORS “prosecution [a] 163.095, 163.115. Defendant’s that the trial court argument not have admitted the should because were photographs, they is not well unduly prejudicial, irrelevant taken. ORS photographs 41.415 directs the trial court to admit such in a for a criminal homicide if the district prosecution attorney general appearance offers them to show the and condition of statute, effect, declares the the victims while alive. under to be relevant and subject balancing photographs (the at 334-37 King, supra, OEC 403. See State added) 609(1) words “shall be admitted” OEC (emphasis admit evidence of convictions trial courts to require prior criminal defendant without the purpose impeaching envisioned balancing in the discretionary process engaging *10 403). OEC that ORS 41.415 is uncon also contends
Defendant Amendment to the violates the stitutional, Eighth because it defendant argues Specifically, States Constitution.10 United the statute in the introduced pursuant that a photograph that becomes evidence automatically of the trial phase guilt trial and that of the in the phase can consider penalty the jury in the the defendant is unfair to inherently such photograph 11 in the same argument rejected This court phase. penalty (1990). We P2d 1326 523, 560, 789 Or Nefstad, State v. 309 The we should overrule that are not persuaded Nefstad. Exhibits 38 and admitted trial court which the statute under 10 provides: States Constitution Eighth to the United The Amendment imposed, nor cruel required, fines nor excessive shall not be “Excessive bail punishments inflicted.” and unusual 11 2529, 496, 107 L Ed Maryland, Ct 96 482 US S v. relies on Booth Defendant about the not introduce evidence prosecutor could that the which held 2d 440 hearing. sentencing family capital in a impact on the victim’s of the murder in the impact holding concerning “victim statement” Assuming that Booth’s concerning in argument admission the bearing phase on defendant’s penalty had a appearance condition of showing general phase photograph “the guilt aof broad alive,” States overruled Supreme of the United Court while the victim 2, 115 2597, 2611 US_, n L Tennessee, 111 S Ct Payne 501 holding in of Booth (1991). Ed 2d 720
29 that defendant theory 39 is not unconstitutional advances. six photographs 37 contained a packet
Exhibit identifications had to make out-of-court witnesses used two saw with defendant they two women whom The two witnesses of the murders. day Simonsen on con to cross-examination subject at trial were testified state intro identifications. The their out-of-court cerning at testimony those witnesses’ the photographs during duced statements their out-of-court concerning prior trial identification.12 in Exhibit 37 photographs
Defendant claims that increases, even slightly, were irrelevant. Evidence fact is relevant of the existence of material probability 401; Walton, at Or 232. evidence. OEC State probability in Exhibit 37 increased photographs with the victims on the the murders. day defendant was the witnesses had seen with Evidence that women whom the victims day on the of the murders were fact defendant with victims and at the critical to defendant placing was That was a material fact issue. scene of the murders. he that the state did argued prove trial crimes. ever with the victims at the scene was unduly Neither were the Exhibit photographs by one is intended to presented party All evidence prejudicial. i.e., to increase the likelihood the opposing party, prejudice Pinnell, will the case. State v. that the lose opposing party (1991). inquiry The relevant 98,Or 105 n 806 P2d 403; OEC unfairly prejudicial. the evidence whether (1990). The trial Smith, P2d 836 Or discretion, and this is reviewed for abuse of court’s ruling whether the the trial court’s decision court defers to generally *11 substantially outweighed by evidence is probative value 801(4)(a)(C) provides: OEC hearsay “A is if: statement “(a) subject hearing trial or and is to cross- declarant testifies at the The statement, concerning statement
examination <<** * * *
“(C)
person.”
perceiving
person
made after
of identification of
One
potential
for prejudice.
Rose,
State
Defendant does not explain how the photographs him. unfairly prejudiced They were typical photographs two women taken on a vacation and were not unusually in nature. We find sympathetic no abuse of discretion here and, thus, no error. 85, 90, 87,
Exhibits and 91 were photographs victims, alive, showed the while with items of personal prop erty later found in defendant’s control. Defendant claims that irrelevant, were photographs “because it was not dis at trial that puted girls were killed or property was in possession with whom it was people found.” That argument unpersuasive, because state had the connection between prove murders, defendant and the which was disputed trial. The were photographs relevant to show that the saw with property witnesses defendant belonged Moreover, the victims. defendant was charged with the victims as an robbing crime in some of underlying the murder That counts. defendant was seen with the vic possessions tims’ is relevant to an essential element of rob bery. that,
Defendant next even if argues Exhibits 90, and 91 relevant, were were The they unfairly prejudicial. trial court ruled that the value of those exhibits was probative not substantially outweighed their for unfair potential prejudice. trial court did not err in making ruling. the trial court did not err in summary, admitting 37, 38, 39, 85, 87, Exhibits and 91.
2. Photographs Impressions of Defendant’s Tires The state introduced of tire taken photographs prints of the tires on defendant’s truck and the inked impressions from those state tires. The evidence Ore presented through gon concerning State Police criminalist Michael Scanlon tracks found at the scene of the murders. Scanlon took tire tracks at the on the that the day the tire scene photographs trial, Scanlon described found the victims’ bodies. At police at the scene and them to compared taken photographs *12 photographs that he had taken of defendant’s tires and inked of those tires. He impressions testified that the tire at the scene had the impressions same tread and design, style, pattern of wear as the tires on defendant’s truck. He also testified that the tracks at the scene were of “insufficient clarity to make a positive match” with tires, defendant’s because he could not match fine details.
Defendant contends that
had
photographs
no
value,
probative
because Scanlon could not say “con-
clusively” that
the tire tracks at the scene
defen-
matched
dant’s tires. The
is not
question
whether
the evidence is
“conclusive,” however, but
whether
only
proffered
evi-
dence has any tendency to
prove
disprove
fact that
is of
to the determination
consequence
401;
action. OEC
(1990).
Clowes,
686, 691-92,
D. Trial Judge’s Demeanor
This of error concerns the actions of the assignment witness, trial to one Dawna Urich. Urich had judge regard time, with at and had a they daugh- cohabited defendant one The state called her to testify. ter. objected counsel testimony, Urich’s defense
During on the grounds of the prosecutor’s questions to some that the were questions the witness and leading state was The trial court ruled: relevant. relevant issue. I think it’s
“No, I relevant to an think it’s something with the doing the defendant’s to the issue of knowledge, evidence, some that can show some witnesses leading I think that two, in time one, point at this and with happened it has I don’t think with this witness. proper this witness allow it with going I and am other witnesses relevant.” the evidence time. I also think objections. no further made Defense counsel question, Urich asked another The state asked The trial court excused to make a statement.
explain could not make statement. to the witness that she explained counsel that he was court then to defense The trial showing allowing leading questions, because the witness why explained hostility being he evasive,13 also some point, thought defense was relevant. At that the evidence objection: counsel made a new the evidence objection relevance as to I made the
“[W]hen witness, you ruled as to coming out of this when that is *13 it, you did relevance, Honor, you don’t realize I am sure Your in gave great emphasis right jury and you but looked at the relevant, saying it was way you said it your voice and the have times, you I think that three and you said that thinks jury that the point to the now colored this evidence critical to their to be lady says going that whatever to this drawn more attention you I think have verdict. deserves, you it and also testimony than and this witness in this trial. I anything it than attention to drawn more have do it inten- you I know didn’t back that. very taken was Honor, there done, I don’t think Your tionally, but it was that.” can correct way you that any objections complaint, only not his but that renews Defendant leading questions, to this court. about relevance trial that the inflection contends Defendant jury way made the at the judge’s that he looked the voice and empha- judge that he had ruling improper. denied The trial way significant jury ruling while the in a looked at the or sized judge ruling. making had instructed Moreover, the trial place beginning it was not to the trial that at the the undue any why try made, emphasis he to surmise on, or admissibility The record does ruling of evidence. about judge trial that support contention defendant’s not ruling. evidentiary unduly emphasized judge argues intimi- that the trial also Defendant things “say[ing] would not that she into the witness dated judge witness, outside say.” tell the did The trial otherwise apparently was jury, That truth. presence to tell the ofthe 611(3) part provides in that: OEC witness, party, or a adverse witness party an calls a hostile “When a may by leading questions.” interrogation party, an adverse identified with witness, warranted admonition to this because she admit- ted at trial she had lied grand jury, and she at trial she claiming given had not an earlier recorded officer, statement to a which the she police officer said that had. Nothing the record indicates that the trial acted judge in an manner. intimidating overbearing
The record does demonstrate that trial judge erred in the of in its particulars treatment complained Dawna Urich. witness
E. Instructions
1. Presence at the Scene Crime trial give The court refused to defendant’s requested at or instructions “mere near the scene presence [of base convic upon crime] is insufficient evidence which to scene, knowl tion” and that “mere at the even with presence one of the crime is not make enough of commission edge correctly as The trial court accomplice.” an chargeable affirmatively find what it would need to instructed the had and abetted that defendant aided in order to conclude defendant’s the crimes. trial court refused to give “mere because presence,” instructions about requested was a requested instructions subject concluded that refusal challenges matter argument. erroneous. *14 same in State rejected argument
This court the at 549-50: Nefstad, supra, is argument appeal on focus of defendant Nefstad’s “The mere have instructed his jurors should been the * ** have an the the would been presence at scene of crime and guilty aiding to find him on an basis for them insufficient theory. requested Nefstad’s instruc- abetting Defendant however, the instruc- merely the converse of tions, stated the court’s instructions given: under tions that were an guilty been on not have found Nefstad could defendant jury beyond the found theory unless aiding-and-abetting he, or make intent promote with to doubt that reasonable advised, or encouraged, procured, charged, crimes easier the [of] or the commission the planning act or advice assisted that defendant had concluded alleged. If the the crimes the the of murder scene merely present been had Nefstad Miranda, it could with defendant merely had associated or criminally an liable on have found defendant Nefstad not theory under the court’s instructions. aiding-and-abetting the evidence was sufficient to show that defendant Whether assisted, defen- encouraged, procured, advised Nefstad charged crimes was a Miranda in the commission of the dant the Thus no argued juiy. have been to matter that could * * * *(cid:127) * * presence on mere by the trial court instruction required.” Stores, Dept. Hall v. The 131, 143-44, May
See also Or (1981) if a correctly is (“Ordinarily, 637 P2d it must find in order to elements instructed those need further conclusion, a court not go reach an affirmative circum- version of various and side’s opposing submit not suffice to reach conclu- disputed stances that would sion.”) in (emphasis original). is distinguishable that his case asserts Nefstad, evidence because circumstantial
from State “only We rejected categorical him at the scene.” have placed and circumstantial evidence above. distinction between direct from is not distinguishable at 24. This case Or would a different outcome on any way require Nefstad no to give this There was error refusing point. instructions on “mere requested presence.” Doubt 2. Reasonable trial gave court guilt phase,
At close of proof: about the state’s burden of the defen- “The is innocent unless until defendant doubt. guilty beyond is proven dant guilt upon prove “The burden is State charged as to each beyond a reasonable doubt defendant has no The defendant or lesser included offense. offense to an defense. affirmative proof except burden “ uncertainty as means an honest ‘Reasonable doubt’ It is on common sense of the defendant. based guilt when, after doubt exists careful reason. Reasonable case, do you of all consideration the evidence impartial certainty a moral that the defendant not feel convinced to you is such as would Proof a reasonable doubt guilty. own willing important your in the upon act most doubt, doubt, every though, affairs. Reasonable *15 open moral evidence is everything depending upon because imaginary doubt.” possible to some Defendant to the use of the cer- excepted phrase “moral He also to the tainty.” last sentence. He excepted argued jurors instruction would lead to base their verdict on perceived defendant, moral of rather than reprehensibility the evidence” determine “dispassionately weighing whether the state had its case. proved
All but the last sentence the disputed of instruction comes from Uniform Criminal The Jury Instruction 1006. uniform instruction derives from Justice Shaw’s Chief (5 charge Webster, to the in Commonwealth v. 59 Mass jury Cush) (1850). 295, 320 Chief Justice Shaw’s is the charge basis of the reasonable doubt instruction in many jurisdic- (3d McCormick, 963, 1984); Morano, § ed tions. Evidence A the Reasonable Doubt Reexamination Development of (1975).14 L Rule, 507, 55 BU Rev 522-23
The last sentence of the instruction also derives from
Webster,
Commonwealth
v.
Chief Justice Shaw’s charge.
some
include
59 Mass
320.
Although
jurisdictions
in their
definitions of reasonable
wording
statutory
doubt,
1096;
§
§
see Cal Penal Code
Guam Crim Proc Code
2901.05(D),
§
Rev
it is not
90.23(a);
part
Ohio
Code
or uniform
instructions.
statutes
Oregon’s
to declare that
uniform
Oregon’s
asks us
‘
erroneous,
because it uses the term ‘moral
on the
He asks that his conviction be reversed
certainty.”
the instruction was erro-
the last sentence of
grounds
him. Defendant bases his
that the error
neous and
prejudiced
We first
federal constitution.
on state law and the
argument
Sterling
law. See
v.
based on state
argument
consider
(1981) (state
argu-
law
611, 614,
Justice P described 256-57, 35 655 25 Or Morey, State reason- in defining had encountered that courts the problems able doubt: Webster, supra. Commonwealth predates concept of reasonable doubt The (1991) Thomas, (tracing P2d 689 nn 2 & 806
See State v. doubt). specific history requirement a reasonable Webster, challenged from in this case derives that is reasonable doubt formulation of however. have the courts efforts been made “[[Innumerable *16 doubt,’ as in the ‘reasonable used the expression define law, of have met with universal so far none them criminal but or accuracy expression of or remarkable for approval, been in courts many jurisdictions and thought, clearness of any into of what the term explanation declined to enter have means, is as well calcu- it is believed the term itself because juror meaning of its own to mind convey lated to given, try give and that to to any definition which can ** * to ‘trying word is specific meaning to the ’ number, space. is and measure what is not what not count adjudged in in the cases “The utmost confusion exists definition, matter of abound in the books instances in jurisdic- has been held error one where same definition another, in this is even in the and as correct true tion * * * grows This out of the inade- [confusion] same state. or plainer, by of to make further definition quacy language within refining, meaning compre- a term the of which is capable understanding common every person hension of English.” 100 law, years of the state made description nearly
That
of its current confused
is a remarkably apt description
ago,
1142,
See,
F2d
Pepe,
as well.
United States v.
501
e.g.,
state
1974) (courts
(10th
must define “reasonable
1143-44
Cir
(7th
Hall,
1036,
doubt”);
v.
F2d
1037-39
United States
854
1988) (courts
from
strongly discouraged
attempting
are
Cir
doubt”);
Nolasco,
v.
define “reasonable
United States
(9th
den_US_,
111,
869,
Cir),
cert
112 S Ct
F2d
(1991) (trial
L Ed 2d 80
has discretion to define
court
doubt”);
Hewlett,
to define “reasonable
People
not
(it
(1987)
555, 133
417, 418
NYS2d
AD2d
reversible error
use the
“moral
Monk v.
F2d
phrase
Zelez, 901
certainty”);
(10th
1990) (“moral
885, 890
certainty”
Cir
can
phrase
compensate
other
instruction
part
impermissibly
to lessen
Here,
tends
the burden of proof).
defendant
(“reasonable
similar
instruction
means a
requested
doubt
unreasonable”)
doubt that
to the one that
the defen
attacked,
in
he
Morey
dant
State v.
attacks the term
Roberts,
“moral
which
defendant
State
certainty,”
187,
(1887),
15 Or
Oregon point. Including the term “moral in an instruction certainty” defining necessarily In
reasonable doubt is not
error.
State v. Robin-
son,
524,
“Many definitions have come before this court for
which,
in the past
and we have
honored definitions
like the
case,
given
equate
one
in this
‘reasonable doubt’ with ‘estab-
’
Abrams, 11
lishing
certainty.
the truth to a moral
State v.
Or
327;
241,
573;
8 P
25 Or
36 P
State v.
Morey,
Roberts,
Although certainty” particularly the term “moral is not jury, helpful in the context to the its use of the instruction anything, helpful or, if to defendant. this case is innocuous See, e.g., Degrees “Burden McBaine, Belief,” Proof: (1944) (“To phrase L Rev 258-59 use the moral Cal certainty may convey
the idea to the
that absolute
certainty
required.”);
supra,
Zelez,
901 F2d at 890
is
Monk v.
(use
certainty”
mitigate impact
“moral
could
term
wording
might have lessened the
other
in instruction that
proof);
Smaldone,
F2d
burden of
United States v.
485
state’s
(1974)
(10th
1973),
Cir
cert den
juries.
is,
chance,
misleading,
which
phraseology
couched in
in giving
instruction].”
committed no error
[the
court has
Robinson,
supra,
State v.
Or at 527
Unless a reasonable doubt
misleads
than
it can convict on a lesser
degree
believe that
Roberts,
not find error. the court will
required,
to constitute
reversible
instruction was erroneous for three reasons: standards, rather than jurors to base their verdict on moral evidence; have and it diluted may jury; on the confused We address each of those contentions the burden of proof. turn.
First, reasonable this instruction jurors, hearing context, base a decision on other than the anything' would not jurors, in the The trial court instructed evidence case. doubt, to consider all of the evi- when defining The trial court carefully dence in the case impartially. trial, during at the jurors beginning also instructed their role was to evaluate the trial, and at the end of trial that to remain impartial dispas- and that were they evidence task.15 sionate gave that: example, trial court instructions at the end of trial For in this your responsibility make all the decisions about the facts “It is or how believable the evidence to determine howreliable case. You must evaluate facts, your you apply you must make decision about the evidence is. When * * * *18 your legal facts and reach verdict. rules to those U* * * * * “* * * only upon based the evidence and these verdict should be Your
instructions. your arguments If recol- attorneys’ and are not evidence. statements “The recollection, rely attorneys’ you must is different from the of the evidence lection memory. upon your own ‘ worthy you you that find deciding are to consider all evidence ‘In this case calmly dispassionately, duty weigh and to your the evidence belief. It is bias, sympathy prejudice upon or merits. You are not allow this case its decide any place your deliberations.” charge jury, referred to transcript pages the trial court to the two In the first “facts” three times. and to “evidence” ten times
39 We to defendant’s contention that turn next “moral error, reversible because the phrase instruction was Defendant contends jury. evidence” have confused the may stan that, ‘moral reduced the phrase “whether the evidence’ doubt, or it was confus merely dard of reasonable whether We agree phrase its use warrants reversal. that ing,” obscure,16 disapprove “moral evidence” is archaic and and we was We that its use in this case of its use. are not persuaded error, however.17 reversible
An
a confusing phrase
instruction
contains
guid
if
were left without
error
might
reversible
case.
apply
deciding
about the
standard to
proper
ance
“moral
Although
That is not the situation here.
phrase
as a
whole
informed
is
the instruction
confusing,
evidence”
burden of
about the state’s
jury correctly
proof.
“reasonable
argues
phrase
courts,
including
is its
best explanation. Many
doubt”
own
See,
one,
with that
agreement
proposition.
this
have voiced
(“reasonable
Robinson,
e.g.,
528
it
and understood that
commonly
doubt” is
term so
known
Monk,
embellishment);
Or
Oregon
State
v.
no
199
requires
(1953)
Klein,
Ill
v.
165, 193,
offense” from the correct standard. whether last sentence of inquiry
That leads us to the a have misled the to convict on the instruction could — argues court proof. lesser burden — juror not to the trial court a although argue he did “open is to some hearing everything possible the phrase that he or she subject every doubt” would doubt or imaginary Defen imaginary. had to the whether doubt was question be unrea very might contends that “some real doubts dant time, juror’s a in a but, imagination at the same doubt sonable not that “reason not unreasonable.” We do agree might Morey, doubt. See State v. includes “imaginary” able” doubt (a doubt not an imaginary supra, 25 at 257 Or doubt). imag to some Although phrase “open possible its instructive, use, we its discourage doubt” is not inary instance, in this the context the instructions inclusion whole, not error. a was reversible the instruction was not reversible
We conclude that
That
is consistent with this court’s
error under state law.
See,
Monk,
at 195
e.g.,
supra,
decisions.
Or
prior
was
(although
nothing
gained by way
clarity
“[pjossibly
its
into the attacked instruction all of
through incorporating
v.
State
terms,”
was
the instruction
nonetheless
adequate);
supra,
“It is to us the words ‘substantial’ understood, higher a of they commonly suggest degree are acquittal under the reasonable required doubt than is for then When those statements are considered doubt standard. than certainty,’ with reference ‘moral rather evidenti- juror it clear that reasonable could ary certainty, becomes guilt a finding have the instruction allow of interpreted degree required by based on a below that the Due proof Process Clause.” IbidI.19 given that instruction in his
Defendant contends
similarly
points
He
the same
as he
case
infirm. makes
arguing
raised in
that the instruction was infirm under state
The
doubt is substan-
law.
federal standard
argu-
tially
Thus,
as our own.
we find defendant’s
same
unpersuasive for the same reasons
ments under federal law
discussed above.
point
federal
makes one additional
under
Cage Louisiana,
for the
He
stands
law.
asserts
any
proposition
taining
doubt con-
instruction on reasonable
certainty”
per
phrase
se. We
“moral
is erroneous
Cage.
explicitly
reading
disagree
There, the Court
his
with
Although
disapproved
instructions as a whole.
viewed the
the use
certainty,”
phrase
error
“moral
it found
of the
certainty” in con-
used “moral
trial court had
because the
phrases “grave
junction
doubt”
“substantial
with the
higher
suggested
degree
than
doubt
doubt,” which
19
States,
court
Supreme
of the United
the state
remand from
Court
On
Supreme
giving
Court of the
den_US
instruction was harmless error.
held that
(La),
Cage,
2d 1125
cert
certiorari. State v.
583 So
United States denied
_,
(1991).
211, 116 L Ed
112 S Ct
2d 170
for a
required
“reasonable” doubt. We do not read
Cage
suggest instruction
every
containing
“moral
phrase
See,
certainty”
is necessarily erroneous.
Gaskins v.
e.g.,
McKellar, _US_,
S Ct
We conclude although disputed portion informative, instruction was not and we do not endorse its cases, use other could not have con- reasonably strued it either to decrease the state’s burden of or to allow the to base its decision on other than anything evidence. The giving instruction on reasonable doubt was not reversible error.
III. PENALTY PHASE *21 ASSIGNMENTS OF ERROR Instruction on Mitigating Evidence A. as error the trial assigns court’s failure to
instruct
jury, during
that
penalty phase,
should
consider mitigating evidence about him. As the state con-
cedes, the instructions were inadequate to
with
comply
this
court’s
in
Wagner,
opinion
5, 14-20,
Or
786 P2d
cert
93,
den_US_,
212,
111 S Ct
B. Evidence Drug Dealing
Defendant objects evidence, to introduced during the that penalty phase, used, he possessed, sold drugs. He that claims that evidence was not relevant.20 The state argue probative Defendant does not that value of this evidence is substantially outweighed by potential prejudice. its was that the evidence relevant issue whether
responds would be the future. dangerous defendant testified people’s Witnesses that defendant burned them cars, houses threatened with and threatened guns, not them, pur- kill because had their debts for they paid had defen- purchase drugs chases of refused from drugs, name to others as a dant, drug or had his dealer. given long that he be violent as Defendant himself admitted will has a drug problem. he to the
Evidence defendant’s goes question pen violent is relevant probable during future behavior Farrar, cert Or 132, 175, alty phase. State 786 P2d State (1990); den_US_, 212, 112 111 S L Ed 2d 171 Ct Moen, (1990); Or 786 P2d ORS 163.150(1)(b)(B) (1987) must determine whether there (jury crimi that the defendant will commit future is a probability threat to soci constituting continuing acts of violence nal issue of directly bore challenged evidence ety). not err in admitting The trial court did future dangerousness. that evidence. to Rape Statement Desire
C.
Defendant’s
a former co-worker of
penalty phase,
During
defendant had told him
he
testified that
defendant’s
he
that it was
had
“girl,”
something
like to rape
would
that it would be
about,
thought
thrilling
and that he
thought
was
at trial that that evidence
too
objected
to do it. Defendant
court,
In this
defendant
also
to be admitted.
prejudicial
irrelevant.
that the evidence was
argues
relevant,
they
because
statements were
Defendant’s
toward women
may
violently
he
act
indicated that
in ruling
not abuse its discretion
trial court did
future. The
substan-
value of the statements
the probative
Accordingly,
for prejudice.
tially outweighed
potential
not well taken.
of error is
claim
defendant’s
Practices
Board
Parole
about
Testimony
D.
*22
erred by
the trial court
argues
Defendant next
of Parole
of the Board
employee
from an
testimony
excluding
aggravated
legal interpretation
Board’s
concerning statutory
of its
and its view
options
sentencing
murder
The
if
sentences were to be imposed.
consecutive
authority
It is the
trial court did not err in
evidence.
excluding
witnesses,
to inform the
court,
function of the trial
not
(trial
Brown,
Defendant also contends costs of administering evidence that excluded erly for life. costs of imprisonment outweigh death penalty evidence, because the excluded that trial court properly The a matter of policy properly it addressed was issue that branch, a jury. legislative reserved for
IV. CONCLUSION assignments all of defendant’s We have considered argu- or Any assignment arguments. error and supporting considered either has been that we have not discussed ment defendant, adversely and decided this court previously find that to recur on remand. We unlikely or is unpersuasive, of error assignments reversible error on there was no have not discussed. we affirmed as to all of defendant’s
The judgment vacated, and the case of death are The sentences convictions. proceedings court for further to the circuit is remanded with this opinion. consistent J.,
PETERSON, dissenting. Unis, J., with this exception. I in the dissent join ORS under rights violated defendant’s further, 10.095(6) to go It is unnecessary ORS 136.415. Article I not reach the would law is concerned. as state insofar the federal question. I, question section J., FADELEY, dissenting. Moen, State reasons stated
I
for the
dissent
(1990)
J., dissenting).
(Fadeley,
102-04, 786 P2d
Or
decision
Court’s
Supreme
The United States
L Ed 2d
2934, 302, 109 S Ct
492 US
Penry
Lynaugh,
death
scheme
penalty
the Oregon
doubt on
(1989), cast
*23
from the
copied
were
Oregon
primarily
statutes
because
Penry
to
constitu-
and laws that
held
be
procedure
Texas
Wagner Oregon,
v.
Thereafter,
492 US
in
tionally inadequate.
Ed
that court
Ct
106 L
2d
914, 109 S
sentence,
apparently
death penalty
vacated an Oregon
statute
Oregon
of the
inadequacy
pre-1989
of similar
because
an
deter-
whereby
Oregon jury
the method
provided
sentence to
imposed.
mined the
initiative
by the
proposed
statute was
pre-1989
in
the United
vote
1984. On
by
process
adopted
popular
to this
Wagner Oregon
Court’s remand of
States Supreme
to
Court reacted
court,
Oregon Supreme
of the
majority
from its
constitu-
apparent
to “save” the initiated statute
try
a 100-word amendment
adding
infirmity by judicially
tional
Moen,
it. See State
(dissenting
Because of defendant’s in the guilt-acquittal phase doubt used sonable Constitution, law, the Oregon statutory case violated capital Fourteenth Amendment Process Clause of the Due error Constitution, requires and that such States the United convictions, I would remand of all of defendant’s reversal for a new trial. to the circuit court case Defendant was convicted of four counts of aggra- murder, women, two see involving felonies, vated and of other Or at and was sentenced to death. the guilt- phase trial, defendant’s was acquittal instructed the prosecution had the burden of proving guilt beyond reasonable doubt. In its defining instruction doubt, the court used the phrase certainty,” “moral and the doubt, instruction stated: “Reasonable last sentence of that doubt, though, is not every because everything depending moral evidence is upon open some possible imaginary added.) doubt.” (Emphasis
Neither the “moral phrase certainty” nor the term “moral evidence” defined to jury. excepted both to the last sentence and to the use of *24 phrase “moral certainty” earlier in the instruction. argues, essence, that use challenged defining instruction reasonable doubt is prejudi- error cial because it allowed the base jury to its verdict on moral standards or (or, states, considerations majority on “the perceived defendant,” moral reprehensibility 35, on Or rather than a dispassionate weighing evidence determine whether the has proved state its case.1 Defendant asserts a could juror reasonable have inter- a preted disputed permit on finding guilt a level of less than is persuasion reasonable required standard doubt under state law and the Process Due Clause of Fourteenth Amendment the federal constitution.
STATUTORY AND OREGON
CONSTITUTIONAL CLAIMS
I shall
argument
first consider defendant’s
based on
See
law
statutory
Oregon
and the
Sterling
Constitution.
(1981) (“The
614,
290 Or
(1969), this court noted that an adult
with
charged
a crime
has a
under then ORS
right
136.520, now
136.415,
ORS
“to
be found
if the
guilty only
fact finder finds
a reason
able doubt that
the defendant committed the act charged.”
right,
“[S]uch
not
[although]
stated in
specifically
Ore
[the
gon] [C]onstitution[,]”
said
court,
“is
one inherent
[also]
in the Due Process Clause of both [the state and federal]
constitutions.”
Id. In
cases, however,
later
this court noted
that the phrase “due
does
process”
appear
the Oregon
Constitution,
Clark,
231, 235 4, 630
291 Or
n
P2d 810
(1981),2 and that no Oregon constitutional
text expressly
requires
proof beyond reasonable doubt for a
finding
guilt
of a crime. State v. Thomas,
311 Or
184,
Process”: Unconstitutional Law in
Or L
49
Rev 125
3 recognize
I
premise,
“[a]s
that this court has stated that
a constitutional
the
phrase
process’
supported by
‘due
[the]
must refer to
federal clause and must be
interpretations
Supreme
of the clause in
the
decisions of
United States
Court or of
decisions,
phrase
appear
Oregon
other courts based on such
since the
in
does not
the
(1981).
Clark,
4,
Constitution.” State v.
231,
However,
291
n
Or
235
Nevertheless, of not to be convicted a crime right a is a right protected on reasonable doubt except proof beyond 4 33, I, of the Constitution. In order Oregon Article section by I, an Article three elements must exist. right, to be section 33 First, must be one that no other constitu Oregon the right Second, addresses. provision affirmatively right tional at in recognized be have been least general must shown to Third, time a terms to exist at the became state. Oregon founding be one that of people Oregon’s must right magni would have considered of constitutional generation “that is to people, say, rights tude between and government as to be funda ‘so rooted specifically against government ” Burrow, 691, 713, 226 mental.’ 293 Or 653 P2d (1982) (Linde, J., dissenting). right three elements exist with respect
Those a on a except beyond to be convicted of crime First, constitutional Oregon provision reasonable doubt. no Thomas, State addresses affirmatively right. Second, that existed at the time right Or 184. is a 311 id. at 185 a (right require proof became state. See Oregon conviction of crime existed a reasonable doubt beyond state).5 a or a territory Finally, became Oregon before Oregon supra note 2. Constitution. See
4 33, I, Oregon provides: of Constitution Article section Oregon’s Rights, rights, privileges Bill [in of enumeration of “This 32,] impair deny I, through others not be construed Article shall sections people.” retained 14, 1848, Territory organized. Oregon Oregon was August was On (1991-92). 14, February Oregon Blue Book 416 1859. a state admitted proof beyond history requirement of of This court has discussed reasonable doubt: uniformly required Oregon beyond near a reasonable doubt “Proof 9, 835(5), (Deady p Oregon, § of ch See General Laws the time of statehood. 1845-1864) (‘that cases, guilt shall established criminal (if XXXVI, [Territory] p § doubt’); Oregon ch Statutes cf. ’ doubt, degree public [sic] offence defendant ground of a which ‘reasonable only).” degree guilty, of the lower he can be convicted (1991). 182, 185 2, version of the Thomas, n P2d An earlier State Oregon stated: Statutes [sic], public offence appears has committed that a defendant “When it degrees guilty, doubt, more he is ground in which of two or is reasonable there only.” degrees lowest of these can he be convicted XXXVI, 1, p 251. [Territory] § Oregon ch Statutes *26 right to a reasonable doubt is of consti- require proof beyond tutional between It is a magnitude government people. that deals with the right directly confrontation of govern- ment individuals an context. In that con- adversary frontation, burden to prosecution’s prove guilt beyond reasonable doubt represents degree of confidence that our society thinks that a factfinder must have in the correctness of his or her factual conclusions a criminal case. The high standard necessary to ensure con- proof against unjust by giving victions substance to the presumption of innocence. burden prosecution’s prove guilt beyond reasonable doubt “rank[s] those distinctions high among that are commonly boasted to our place system justice above those supposedly enlightened nations, less including some in which a defendant be haled before a perhaps may court, confronted with some modicum of evi- incriminating dence, and invited to the tribunal persuade that he [or she] Burrow, has not committed a crime.” State v.
at 714 (Linde, J., reasonable doubt dissenting). “[T]he instruction more than other is central in any preventing conviction of the innocent.” 25 Cal 3d People Brigham, (1979). 283, 100, 157 Cal 599 P2d Rptr The reasonable doubt standard a vital role “plays the American scheme of criminal In re procedure.” Winship, (1970). 358, 363, L Ed 397 US 90 S Ct 2d 368 his concurring in In re 397 US at opinion Winship, supra, Harlan stated that the doubt standard is Justice society based on a “fundamental value determination of our an innocent man than to let a is far worse to convict man free.” guilty go
Thus, under and constitu- Oregon statutory both must have been based law, tional defendant’s convictions doubt doubt. The reasonable a reasonable proof beyond of defendant’s instruction used in the guilt-acquittal phase trial stated: unless and until the defen-
“The defendant is innocent guilty beyond a reasonable doubt. proved dant is guilt prove “The burden is the State upon charged as to each a reasonable doubt defendant has no The defendant or lesser included offense. offense defense. except as to an affirmative burden “ doubt’ means an uncertainty ‘Reasonable honest as to guilt of the defendant. It is based on common sense and when, reason. Reasonable doubt exists after careful and case, in the impartial you consideration of all evidence do certainty not feel convinced to moral that the defendant is *27 a guilty. you Proof reasonable doubt is such as would willing upon your to act in the most of own important doubt, doubt, though, every affairs. is Reasonable not because moral everything depending upon open evidence is to some added.) or possible imaginary (Emphasis doubt.” In instruction reasonable construing defining case, in this is not this doubt what court declares question Moreover, be. meaning of the instruction the fact that could have the instruction so as to make jurors interpreted irrelevant, lawful is for we cannot be certain that this is what Rather, in determining did do. of review they standard reasonable doubt was whether the instruction giving defining could have juror interpreted error whether reasonable finding either a of based on moral guilt instruction to allow considerations, a dispassionate or rather than standards innocence, or or of the evidence to determine weighing guilt by on a of below guilt degree required finding Constitution. law and the statutory Oregon ’ certainty’ of “moral It that both the appears concept sentence of the the last and the challenged language evi- “moral instruction, the use including phrase lan- expressed by mid-1800s as dence,” was uniform reasonable “beyond Shaw’s found in Chief Justice guage Webster, 59 Mass instruction Commonwealth doubt” Cush) (1850). (5 ”: Certainty Moral “To a Shapiro, Juries Anglo-American and Knowledge Theories (1986). 1600-1850, 174-75 Hastings LJ jury tells the The of the instruction last sentence was told that jury doubt. The is not a reasonable what * * * doubt, every- every because is not doubt “Reasonable possible to some open evidence is moral thing depending upon added.) this hearing Before (Emphasis doubt.” imaginary or kinds of are two there was told jury language, evidence, circumstantial evidence, evidence and direct evidence, or direct on either their verdict they could base evidence, circumstantial or both.6 The what joy was told of those evidence However, each means. on types hearing doubt, the instruction told defining was there of evidence, is a third kind moral evidence. The — told was what moral evidence is. Similar language affairs, to human “everything relating depending evidence, to some or moral doubt” open possible imaginary — included in an which formed the basis appeal an the California Court People Supreme Brigham, supra, 9.7 P2d at 104 n As Justice Mosk stated in his in that case: concurring opinion
“Upon hearing contemporary juror might well ask himself, ‘What in is moral evidence? Is it different world from direct circumstantial evidence? If so, evidence how? Different in quality? Are there quantity? three kinds Moral, direct, of evidence: circumstantial? What kind is dictionary “moral”? The synonyms are “pure, righteous, upright.” antonyms “immoral, vicious, sinful, are depraved.” It makes simply speak no sense to “pure evidence” or “righteous “upright evidence” or evidence” *28 “non-sinful Is phrase just evidence.” the an ancient typo- graphical being error with the intended term “mortal evi- (transient fallible) dence,” meaning evidence that man and 6 judge language The trial the instructed in the of what is now Uniform July Criminal Instruction 1019: — types “There are two of evidence. One is direct as evidence such the — testimony eyewitness. an of The other is circumstantial evidence of a the pointing of chain circumstances to the existence or nonexistence of a fact. certain may your evidence, evidence, [on]
You base verdict or direct circumstantial or both.” 7 majority that, correctly People v. Brigham, 283, 157 The *29 not “moral evidence” is The phrase is used. “moral evidence” ordinary usage, Phrases. Words and in West’s listed “ good distinction between suggests moral word ‘[t]he of responsible or character actions to the relation evil ” (Mosk, J., P2d at Brigham, supra, People v. beings.’ Degrees McBaine, Burden concurring) (quoting of Proof: of (1944)). nature n 35 Given L Rev Belief, Calif here, juror a reasonable could have been of the instruction interpreted misled and could have use the undefined allow a verdict guilt “moral evidence” to based phrase standards, rather than on a dispas- moral considerations or evidence, of the or on a below weighing degree proof sionate a reasonable doubt. archaic, obscure, confusing, Even without evidence,” “moral the last sentence of the misleading phrase instruction is ambiguous. doubt not a
“Its
to the
is that reasonable
is
message
hinders,
Whether this statement
‘possible’
helps
doubt.
however,
juror
depends entirely on how each
understands
Unfortunately
many
key
‘possible.’
word
the word has
juror
and the instruction does not define it. If the
meanings,
—
‘potential’
opposed
were to take it in the sense of
as
—
intelligible. But
perhaps
the statement would
‘actual’
meaning
‘possible’; much more
primary
not the
that is
that which can be or can become
commonly simply
it
denotes
—
understood,
if it
Yet
is so
opposed
‘impossible.’
as
by informing
again mystifies
juror;
begins
if he
acquit
[or she]
must vote to
her]
[or she]
him
that he
[or
doubt,
him that such a doubt is
then it tells
has a reasonable
not possible.”
(Mosk, J., concur-
People Brigham, supra, that a juror a reasonable could believe Conversely, ring). also a reasonable one. only “possible” doubt which which of the knowing court has no way This the jurors applied of the word meanings “possible” various verdict in this case. their reaching guilty to the stated, objected defendant also As previously defin- in the instruction certainty” “moral phrase use of the insertion of the con- Historically, doubt. ing reasonable doubt instruction in the reasonable certainty of moral cept consistent with language to make legal “reflected the desire day.” Shapiro, of the terminology philosophical certainty” “moral mid-1800s, terminology In the 175. of the educated and discourse language part “was certainty” Id. “Moral and America.” England in both classes moral, theologi- was found used widely concept awas discourse. legal, as well historical, and cal, philosophical, Id.
54 jury
In his instruction to the in v. Commonwealth supra, attempted Webster, Chief Shaw Justice to define certainty certainty” as “a that “moral convinces and directs understanding, judgment, the and the and satisfies reason of conscientiously upon those who are bound to act it.” 59 Mass phrase certainty” and at 320. Both the “moral Chief Justice phrase acutely attempted of that have 2497 Shaw’s criticized. definition been (Chadbourn § e.g., Wigmore, 9 See, Evidence 1981); supra, People Brigham, P2d v. 599 at 107-20 rev (Mosk, concurring). J., One commentator who examined has history phrase certainty” has of the “moral the intellectual convey contemporary phrase that the does to concluded convey jurors to when it was introduced what it was intended history suggests ought phrase be the of to and that dropped. Shapiro,
supra,
at 154.8
phrase
upheld the
the
“moral
This court has
use of
defining
certainty”
See,
reasonable doubt.
an instruction
(1963).
e.g.,
Robinson,
524,
v.
Or
This review of the deficiencies the challenged and the in the last sentence of the instruction use language “moral illuminates the inclusion certainty” why the phrase in the instruction reason- defining of the challenged language *31 statutory does not with law and comport able doubt of the last sentence language Constitution. When the Oregon instruction, which includes the use of the undefined of the with evidence,” “moral is considered the reference to phrase “rather evidenti- than “moral certainty,” the undefined term Louisiana, ary certainty,” Cage see v. 111 Ct at 330 S added), juror a reasonable could have (emphasis interpreted either moral the instruction to find defendant on guilty rather cer- evidentiary standards or considerations than or a threshold of lower than a proof proof beyond on tainty, doubt. the instruction reason- Viewing defining whole, doubt several and confusing misleading able cannot combine to make a clear and satisfactory components law and Thus, the instruction violated statutory instruction. Constitution. Oregon defin- determined that the instruction Having giving error, next is to deter- inquiry reasonable doubt was ing of all mine whether the instructional error reversal requires of defendant’s convictions.
ORS 138.230 provides:
give judgment,
the court shall
hearing
appeal,
“After
which were in the
regard
questions
to the decision of
without
errors,
below
technical
defects
discretion of the court
orto
(SC 1991),
den_US_,
Manning,
112 S
guilt”
any,
“little,
if
likelihood that the error affected
Miller,
203, 220-21,
the verdict.” State v.
300 Or
FEDERAL FOURTEENTH
DUE PROCESS CLAIM
Amend-
of the Fourteenth
The Due Process Clause
upon
against
except
“protects
ment
the accused
conviction
every
necessary
charged.”
beyond
proof
fact
doubt of
a reasonable
[the accused]
constitute the crime with which
quoted
approval
Winship, supra,
with
re
397 US
Cage
This fundamental
Louisiana,
conviction. Or 58
In
the instruction
reasonable
construing
defining
case,
the
in
a
given
jury
question
doubt
the
is not what
declares the
of the instruction to
Francis v.
meaning
court
be.
Franklin,
307, 315,
1965,
471
L
US
105 S Ct
85 Ed 2d 344
(1985). Moreover, the fact that
could have
jurors
interpreted
irrelevant,
lawful
for “we
the instruction so as to make it
cannot be certain that this is what
did do.” Sandstrom v.
they
(1979)
Montana,
510, 526, 99
2450, 61 L
442
S Ct
Ed 2d 39
US
Rather,
in
the standard of review
(emphasis
original).
error is
whether
this is a federal constitutional
determining
“
there
a
likelihood that the
has
jury
‘whether
reasonable
way’
instruction
that violates
applied
challenged
McGuire,_US
_,
475,
112
Estelle v.
S Ct
constitution.”
(1991)
California,
2d
v.
494
482, 116
(quoting Boyde
L Ed
(1990)).12
380,
1190,
“Whether a conviction for crime should stand when
a [s]tate has failed to accord federal constitutionally guaran
* * *
teed
is
v.
rights
federal question.”
Chapman
Califor
nia,
(1967).
18, 21,
386 US
824, 17
87 S Ct
L Ed 2d 705
“Trial
errors” are subject
to harmless error analysis. Arizona v.
Fulminante,_US_,
111
1246, 1264,
S Ct
113 L Ed 2d
(1991).13
(“structural
302
“Structural
errors”
in
defects
constitution of the trial mechanism”), on the
hand,
other
Id.,
automatic
require
reversal.
Examples structural errors include the denial of trial, to counsel at the denial right to a trial right conducted anby the denial of the impartial judge, to self- right the unlawful representation, exclusion of members of the defendant’s race from the grand jury, the denial of the that, simply beyond A federal constitutional an “harmless error” is error doubt, guilt. Chapman v. has contributed to the determination of (1967) California, 18, 24, 87 824, 17 (recently 386 US S Ct L Ed 2d 705 reconfirmed 1892.) Evatt, supra 12, test in Yates v. proper note Cage developed Supreme This distinction was after the Court’s decision in Louisiana, supra, note 12. Fulminante, trial. Arizona v. Ct to a 111 S right public n Virginia, Jackson at 1265. In 443 US S Ct 2d 61 L Ed Court stated that Supreme cases have indicated that “failure to instruct a on the jury its can necessity reasonable doubt guilt never harmless error.” the Fulminante distinction to errors those
Applying
(trial errors)
to harmless error
and those
subject
analysis
(structural errors),
errors
automatic reversal
subject
at issue
this case that allowed the
less
guilt
persuasion
by
make a
than
finding
required
con-
the reasonable doubt standard mandated
federal
error that calls for automatic rever-
stitution is a structural
I
in my
This
so for the same reasons that
stated
sal.
law and the
whether,
statutory
Oregon
discussion of
under
reversal. See
error
Constitution,
requires
the instructional
ante,
It is a
deprivation
Applying the Yates standard and viewing the instruc- tion defining reasonable doubt as whole, I find the deficient defining reasonable doubt not harmless. The majority’s facts, review of the even in the light most favorable state, to the demonstrates that this case is close on the facts. Stated differently, although the commission of a may crime proved solely by evidence, circumstantial case, the state’s which is based on circumstantial entirely evidence, is not so overwhelming as to leave it reasonable doubt that the verdict on that resting evidence would have been the same *36 in the absence of the erroneous instruction reason- defining able The doubt. instruction at issue here to the conveyed jury i.e., basis, that it base verdict may its on an improper moral standards, or, considerations or put point differently, to the deficient permitted jury instruction to use a lesser burden of than proof proof beyond a reasonable doubt. The force of the evidence in considered presumably with the trial accordance court’s instruction is not “so over- as to leave it a reasonable whelming [in case] doubt that the verdict on that evidence would have resting 62 in the of the [deficient instruction].”
been the same absence because, stated,15 particularly This is so as in the previously it trial, an murder takes aggravated of guilt-acquittal phase one to prevent guilt.16 unconvinced only juror finding reasons, I
For the dissent. foregoing respectfully Peterson, J., in this joins dissenting opinion part. Fadeley, J., joins dissenting opinion. in this
15
supra
11.
See
note
defining
given in
also
The instruction
reasonable doubt
this case
stated
‘‘
upon
you
willing
[plroof beyond
is such
would be
to act
in the
a reasonable doubt
as
States,
121, 140,
important
your
US
own affairs.” Holland v. United
most
Supreme
Ct
L Ed 150
Court
the United States
75 S
kind
presented
that defined reasonable doubt as “the
of doubt
with a
* ** *
your
important
you
affairs of
own lives
which
folks
the more serious and
upon.”
Supreme
might willing
“this
to act
The
Court stated that
section
make a
kind of doubt that would
have been in terms
[instruction] should
* * *ratherthanthekindonwhichheiswillmgtoact.”Id.
person
act
hesitate to
“preferís]
Appeals has made it clear
Holland’s
Ninth Circuit Court
you
requiring
would be
‘such
formulation to an instruction
‘hesitate
act’
relating
your
important
own
willing
upon
and vital matters
most
act
”
1991).
(9th
1378, 1386
Jaramillo-Suarez,
Cir
See
F2d
States v.
affairs.’ United
1976)
(9th
(original
Robinson,
Cir
statement
F2d
also United States
preference).
of this
notes
in
25 Cal 3d
Cal
905, 599
Rptr
Supreme
the
giving
P2d 100
California
Court “held that the
of
harmless,
wording
an instruction on
doubt that
reasonable
contained this
was
not
prejudicial, in the
of that
n
circumstances”
case. See