In the early morning of August 7, 1987, in the parking lot of a Denny’s restaurant on McLoughlin Boulevard in Clackamas County, Oregon, Jennifer Smith, a young woman Dayton Leroy Rogers had picked up in Portland, was stabbed to death after he tied her with shoelaces in his pickup truck. A Denny’s customer followed the truck as he drove away and got its license number. Rogers was in custody when, in the months that followed, the police found the bodies of seven women in the Molalla Forest, each stabbed or cut. He was convicted of Smith’s murder and given life, and then convicted of thirteen counts of aggravated murder for the deaths of six of the forest victims and sentenced to death on June 9, 1989.
The four opinions of the Supreme Court of Oregon collected here, spanning twenty years, never touched those convictions. In 1992 the court affirmed them and ordered a new penalty-phase trial because of a change in Oregon law on how capital juries weigh mitigating evidence. A second jury returned death again, and in 2000 the court vacated that sentence too. In 2002, in a mandamus proceeding before the third penalty trial, it ordered the trial court to let Rogers examine the master jury lists he said would show that his juries had been drawn unfairly.
The third death sentence reached the court in 2012, and the court vacated it on two grounds. The trial judge had seated an anonymous jury without finding that the jurors truly needed protection, and had let the prosecution put in evidence of homosexual experiences Rogers had as a teenager. The case went back for a fourth penalty trial. Each opinion restates the facts of the killings, so the reader can watch the same record described by three different generations of the court.
None of these opinions reviews a claim that Rogers did not commit the killings; the guilt-phase verdict was affirmed in 1992 and the later appeals concern only his sentence. The court’s summary of the evidence is taken from the trial record in the light most favorable to the State. His later history, including the vacating of a fourth death sentence and the resentencing proceedings that followed, is outside this record.
All four opinions are public records of the Supreme Court of Oregon. The women Rogers was convicted of killing keep their names, as do the lawyers, judges and expert witnesses. We have given initials to the juror who was approached in a courthouse restroom during the first trial, and to the mother of one of the victims who approached her. Nothing else has been withheld.
The text is the Caselaw Access Project’s copy of the Oregon Reports, printed complete, with the court’s citation style of that era, “Or” and “P2d” without periods, left as it is. The capture misreads the forest as “Molíala” in several places, and a few other scanning errors, such as “lay” for “by,” are kept. We closed words split across lines where the joined form appears elsewhere in the text, and nothing has been spell-checked.
Argued and submitted November 4, 1991,
judgments of conviction for aggravated murder and aggravated felony murder affirmed, sentence of death vacated, case remanded to circuit court for further proceedings July 9,
reconsideration denied August 25, 1992
STATE OF OREGON, Respondent, v. DAYTON LEROY ROGERS, Appellant.
(CC 88-355, 88-356, 88-357, 88-358, 88-359, 88-360; SC S36344)
836 P2d 1308
Diane L. Alessi, Deputy Public Defender, Salem, argued the cause for appellant. With her on the brief was Sally L. Avera, Public Defender, Salem.
Brenda J Peterson, Assistant Attorney General, Salem, argued the cause for respondent. With her on the brief were Dave Frohnmayer, Attorney General, Virginia L. Linder, Solicitor General, and Ann Kelley, Diane S. Lefkow, and Janet A. Metcalf, Assistant Attorneys General, Salem.
PETERSON, J.
Fadeley, J., dissented in part and filed an opinion.
[OPINION BY PETERSON, J. type=majority]
PETERSON, J.
Defendant appeals his convictions of 13 counts of aggravated murder and his sentence of death for causing the deaths of six women. Defendant challenges both the guilt and penalty phases of his trial. Because we conclude that no reversible error was committed in the guilt phase, we affirm defendant’s convictions for aggravated murder. However, under this court’s decision in State v. Wagner, 309 Or 5, 786 P2d 93, cert den 111 S Ct212 (1990) (Wagner II), defendant is entitled to a new penalty-phase proceeding.
SUMMARY OF FACTS
The jury found defendant guilty. We therefore set forth the facts in the light most favorable to the state. State v. Rose, 311 Or 274, 276, 810 P2d 839 (1991).
On August 31,1987, a hunter discovered a woman’s body underneath some matted ferns in the Molalla Forest. He called the police and later took them to the body. Over the course of the following week, the bodies of six more women were found in the same general area. All the bodies were naked and in various stages of decomposition. Six of the seven women were identified; the seventh remains unidentified.
The State Medical Examiner performed autopsies and determined the cause of death of each of the women to be homicidal violence of an undetermined type. The medical examiner estimated that the bodies had been in the forest from one to three months. Because of the decomposition of the bodies, the medical examiner could not rule out strangulation as a cause of death and could not determine whether the various wounds to the victims had been inflicted before or after death. The medical examiner described the injuries to each identified victim as follows:
(1) Gyles: Six stab wounds to the lower back. The bone of one lower leg had been sawed through, and the foot had been sawed at ankle level.
(2) Mock: Deep stab wounds to the lower back region. Both feet had been sawed off at the ankle and were found underneath the body. There were multiple saw marks on the right thigh bone just above the knee.
(3) Cervantes: Abdomen split open with sharp object from below the breast bone to the pubic area. The right nipple appeared to have been cut, and the left nipple had been cut and removed.
(4) DeVore: The body was totally skeletonized. The upper back revealed stabbing injuries.
(5) Adams: There were stab wounds to the back, and the right foot had been severed at the ankle.' The hands were bound by a dog collar with the arms above the head when the body was found.
(6) Hodges: The remains were scattered by animals. The legs below the knees were not found. The lower back revealed stabbing injuries.
At the site where the bodies were found, officers found various items. Approximately 38 miniature bottles of a particular brand of vodka, a cardboard sleeve that would hold 10 miniature vodka bottles, and 34 orange juice containers were found at the crime scene. A knife with human tissue on it was found near two of the bodies. Additionally, investigators found several items that had been tied into knots, including pantyhose, shoelaces, rope, and a cloth. They also found a dog collar, in addition to the one that was binding Adams’ hands, and pieces of wire.
Defendant already was in police custody as a suspect in another killing when the seven bodies were found in the Molalla Forest. In that other killing, which had occurred in the early morning hours of August 7, 1987, the victim was Jennifer Smith, a prostitute. Defendant had picked up Smith in Portland and had driven with her to a 7-Eleven store and then to the parking lot of a Denny’s restaurant on McLoughlin Boulevard in Clackamas County. Defendant asked that Smith allow him to tie her up so that he could massage her and masturbate. Smith removed her clothes. Defendant then tied her with shoelaces that he had in his pickup truck. Smith was tied so that she was on her knees facing the back of the seat with her hands and feet tied behind her against the dashboard.
At about 2:30 or 3 a.m. on the morning of August 7, several witnesses near the Denny’s parking lot heard a woman screaming. One of the witnesses ran toward the source of the screams, but as he got closer, the screams stopped. The witness saw defendant standing between Smith’s legs. Smith was naked and bleeding and she was having difficulty breathing. The witness yelled at defendant, and defendant ran from the parking lot, carrying a knife. Defendant ran around and behind a nearby building, where he dropped the knife. He then ran back to his pickup truck, which was parked about 45 feet from where Smith was lying, and drove away. Another Denny’s customer followed defendant and obtained his license plate number.
Defendant drove to his small engine repair shop in Woodburn. There was blood all over the passenger side of his truck. He attempted to wash off the blood with a shop rag and sponge. He burned his blood-soaked clothing and a tennis shoe and some clothing belonging to Smith in a wood stove in the shop. The police arrived at defendant’s shop at 5:35 a.m. Defendant’s pickup truck was parked in front and its radiator was still warm. The police saw blood in front of the shop door. Defendant, who was inside the shop, was arrested. He had a strong odor of alcohol and told a detective that he had “bought some miniatures at the liquor store.” Defendant had purchased a 10-pack of vodka miniatures — the same brand of vodka as the bottles found at the Molalla Forest crime scene — from the Woodburn liquor store the previous evening.
Smith bled to death from stab wounds to her chest. She also had stab wounds in her abdomen, in her breasts and nipples, and a complex v-shaped stab wound on her back. The stab wounds were consistent with the knife with which defendant fled and which was found behind the nearby building around which defendant ran. Smith had numerous defensive injuries to her hands and arms, and her wrists showed recent bruises that could have been caused by the knotted shoelaces that defendant had used to bind her.
Near the Denny’s parking lot, the police recovered the knife that defendant had dropped while running. That knife was the same model as the knife later found at the Molalla Forest crime scene. The police found knotted shoelaces, one of Smith’s tennis shoes, and most of Smith’s clothing near where defendant’s pickup truck had been parked. They also seized evidence from defendant’s shop and pickup truck. From his shop, the police seized a hacksaw that could have caused the saw marks on the legs of some of the Molalla Forest victims. In the ashes of the shop’s wood stove, the police found a shoe shank, eyelets, and swivels from Smith’s other tennis shoe; shoe shanks from two other pairs of shoes; shoe eyes; shoe nails; burned and partially burned fabric; numerous brassiere parts; snap fasteners; decorative metal parts and clothing studs from women’s clothing, including star-shaped studs later identified as studs from Adams’ pants; buttons; numerous zipper parts; earring pieces; and belt buckles. The police also seized defendant’s boots, which had blood stains on them.
In defendant’s truck, the police found a bungi cord, a green pull tab from a juice container similar to the containers later found at the Molalla Forest crime scene, numerous blood stains, and several human hairs. Some of the blood stains found were made by type O blood of the same subtype as Smith’s blood. Type 0 blood of the same subtype as defendant’s blood — a subtype that is inconsistent with Smith’s blood subtype — also was found in defendant’s truck. Other blood stains were found in the truck on the passenger seat, seat back, and floor that were types O and A. Cervantes and Adams also had type O blood; Gyles’ blood was type A. Of the human hairs found, several were macroscopically and microscopically similar to Mock’s hair, two hairs were consistent with Cervantes’ hair, and two hairs were consistent with DeVore’s hair. The police also noted that the passenger side door panel, ceiling, and seat were cut.
While the state’s investigation of the Molalla Forest killings was continuing, defendant was indicted, tried, and convicted of aggravated murder for causing the death of Jennifer Smith. During the guilt phase of that trial, the court refused to permit the introduction of evidence regarding the Molalla Forest victims. The state did not offer that evidence during the penalty phase of the Smith homicide trial. In the penalty phase, pursuant to ORS 163.150 (1987), see note 9, post, the jury was asked three questions:
“[1] Was the conduct of the defendant, Dayton Leroy Rogers, that caused the death of Jennifer Lisa Smith committed deliberately and with the reasonable expectation that the death of Jennifer Lisa Smith would result?”
“[2] Is there a probability that the defendant, Dayton Leroy Rogers, would commit criminal acts of violence that would constitute a continuing threat to society?”
“[3] Was the conduct of the defendant, Dayton Leroy Rogers, in killing the deceased, Jennifer Lisa Smith, unreasonable in response to the provocation, if any, by the deceased, Jennifer Lisa Smith?”
The jury answered “no” to the first two questions, and “yes” to the third. Thus, although the jury concluded that the killing was unreasonable in response to any provocation from the victim, it did not conclude that defendant had acted deliberately when he killed Smith, and it did not conclude that it was probable that he would commit criminal acts of violence in the future that would constitute a continuing threat to society. Defendant therefore was not sentenced to death for the aggravated murder of Smith.
Shortly thereafter, defendant was indicted for the killings of the six identified Molalla Forest victims. The six indictments charged defendant with two counts of aggravated murder for each of the victims. The aggravated murder charges were based on murder in the course of torturing each victim, ORS 163.095(l)(e), and aggravated felonymurder for murder during a kidnapping, ORS 163.095(2)(d) and 163.115(l)(b)(E) and (F). The indictment concerning the death of Cervantes also charged defendant with a third count of aggravated murder, for murder in the course of sexual abuse. ORS 163.095(2)(d) and 163.115(l)(b)(H).
At trial, the state presented evidence of defendant’s killing of Smith, including defendant’s testimony in the Smith murder trial. Additionally, the state presented evidence that the six Molalla Forest victims were prostitutes and offered the testimony of 11 other prostitutes who had “dated” defendant. The prostitute witnesses testified about defendant’s conduct during their encounters with him. There was testimony concerning defendant’s habit of mixing vodka from miniature bottles into small plastic orange juice containers. Several of the prostitute witnesses testified that defendant took them to areas in or near the Molalla Forest. They also testified about defendant’s violent sexual proclivities, including, inter alia, (1) tying their hands and feet tightly behind them; (2) threatening to cut their breasts, feet, and buttocks with a knife; (3) biting and pinching their breasts, feet, and buttocks; (4) inflicting pain on them until they stopped resisting, at which time he became uninterested; and (5) deceiving them about his intentions concerning their “dates.”
The jury convicted defendant on all 13 counts of the six indictments concerning the deaths of the Molalla Forest victims. The jury then answered the penalty-phase questions “yes,” thereby requiring the trial court to enter judgments of conviction and sentence of death. ORS 163.150(l)(f).
ISSUES RELATING TO PRETRIAL MATTERS
In his first assignment of error, defendant contends that the trial court erred in denying his motion for a change of venue. He argues that prejudicial pretrial publicity made it impossible for him to receive a fair trial, thus violating his rights under Article I, section 11, of the Oregon Constitution, and the Sixth and Fourteenth Amendments to the United States Constitution. With regard to change of venue, ORS 131.355 provides:
“The court, upon motion of the defendant, shall order the place of trial to be changed to another county if the court is satisfied that there exists in the county where the action is commenced so great a prejudice against the defendant that the defendant cannot obtain a fair and impartial trial.”
We review the trial court’s denial of a motion to change venue to determine whether the trial court abused its discretion. State v. Little, 249 Or 297, 312, 431 P2d 810 (1967), cert den 390 US 955 (1968). We address issues of state statutory and constitutional law before resolving issues of federal constitutional law. Stelts v. State, 299 Or 252, 257, 701 P2d 1047 (1985); State v. Kennedy, 295 Or 260, 262, 666 P2d 1316 (1983). However, for purposes of this case, we assume, without deciding, that the analysis of the issue presented is the same under the statute and the state and federal constitutions, because defendant has “not suggested] any different analysis under the [statute and] Oregon Constitution than under the United States Constitution.” Dept. of Trans. v. Lundberg, 312 Or 568, 573 n 4, 825 P2d 641 (1992).
In the present case, defendant moved for a change of venue after the court and the parties had spent several weeks impaneling a jury. In order to ensure the impartiality of the jury, the court had taken special precautions; it ordered that each prospective juror be questioned separately and increased the number of peremptory challenges from 12 to 48 for each side. Defendant exhausted his 48 peremptory challenges. After hearing defendant’s motion, the trial court found that the pretrial publicity had not been prejudicial, that any risk of prejudicial publicity had been diminished by the period of delay between defendant’s trial for the Smith homicide and the trial in this case, and that any jurors with prior knowledge of the facts of this case or of defendant’s prior conviction had indicated that they could and would base their verdicts on the evidence presented at trial and not on any prejudice against defendant. The court denied the motion for change of venue.
The trial court carefully presided over the extensive jury selection process and was satisfied that the impaneled jurors could and would base their verdicts on the evidence presented. The trial court’s determination that the jurors in the present case would be impartial is entitled to great weight. State v. Montez, 309 Or 564, 575, 789 P2d 1352 (1990); see also Patton v. Yount, 467 US 1025, 1036-38, 104 S Ct 2885, 81 L Ed 2d 847 (1984) (trial court’s determination that an individual juror would be impartial is a finding of historical fact entitled to “special deference” on direct and collateral review). There is no evidence, nor any suggestion, that the trial below was a media circus such as would have prevented him from receiving a fair trial. Cf. Sheppard v. Maxwell, 384 US 333, 363, 86 S Ct 1507, 16 L Ed 2d 600 (1966) (“the state trial judge did not fulfill his duty to protect [the accused] from the inherently prejudicial publicity which saturated the community and to control disruptive influences in the courtroom”). Nor was the jury exposed to information in media accounts that was not presented during trial. See Patton v. Yount, supra, 467 US at 1035 (“The relevant question is not whether the community remembered the case, but whether the jurors at [the defendant’s] trial had such fixed opinions that they could not judge impartially the guilt of the defendant”); accord State v. Savage, 36 Or 191, 203, 60 P 610 (1900); cf. Sheppard v. Maxwell, supra, 384 US at 356-61 (noting prosecution and police leaks to media of information that was not admissible or offered at trial); Marshall v. United States, 360 US 310, 312-13, 79 S Ct 1171, 3 L Ed 2d 1250 (1959) (the defendant was entitled to a new trial where the trial court excluded evidence as too prejudicial, but the jury was exposed to that evidence through the news media). We find no abuse of discretion in the trial court’s ruling.
Defendant next contends that the trial court erred in denying his motion for an order authorizing expenses for a pretrial public opinion poll. He wanted the poll in order to gauge the extent of pretrial publicity in Clackamas County about him and his connection to the Molalla Forest killings and the Smith homicide, in order to determine whether to seek severance of the six indictments for trial or whether he could receive a fair trial in Clackamas County.
Defendant argues that the denial of his motion violated his rights under ORS 135.055(3) and his constitutional rights to adequate assistance of counsel, freedom from cruel and unusual punishment, and due process, citing Article I, section 11, of the Oregon Constitution, and the Sixth, Eighth, and Fourteenth Amendments to the United States Constitution. We first address defendant’s statutory argument. Stelts v. State, supra, 299 Or at 257; State v. Kennedy, supra, 295 Or at 262.
ORS 135.055(3) provides in part:
“The person for whom counsel has been appointed is entitled to reasonable expenses for investigation, preparation and presentation of the case. The person or the counsel for the person may upon motion, which need not be disclosed to the district attorney prior to conclusion of the case, secure approval and authorization of payment of such expenses as the court finds are necessary and proper in the investigation, preparation and presentation of the case * * *.”
This court has not decided what the appropriate standard of review is for atrial court’s denial of an expense request under ORS 135.055(3). The Court of Appeals has concluded that the decision whether to allow an expense request “will depend on the facts and circumstances of the particular case and must be committed to the sound discretion of the court to which the request for expenses is directed.” State v. Acosta, 41 Or App 257, 260, 597 P2d 1282 (1979); accord State v. Gleason, 100 Or App 236, 238-39, 785 P2d 376 (1990). We agree. Of course, the exercise of discretion is subject to an indigent defendant’s constitutional right under the Fourteenth Amendment to the basic tools necessary for the preparation of an adequate defense. Ake v. Oklahoma, 470 US 68, 77, 105 S Ct 1087, 84 L Ed 2d 53 (1985). Where a defendant establishes the probable value of the assistance sought such that there is a significant risk of error in the proceedings if that assistance is denied, the defendant is entitled to that assistance at state expense. Ibid.; see also Caldwell v. Mississippi, 472 US 320, 323 n 1, 105 S Ct 2633, 86 L Ed 2d 231 (1985) (the denial of a court-appointed ballistics expert did not deprive the defendant of due process where he offered little more than undeveloped assertions that the requested assistance would be beneficial).
The trial court denied defendant’s request for the expenses for the opinion poll, concluding that it was ‘ ‘satisfied that the individual voir dire of prospective jurors and the additional peremptory challenges will permit the selection of a jury unaffected by pretrial publicity. ’ ’ Implicit in the court’s conclusion was that a pretrial public opinion poll was not “necessary and proper [for] the investigation, preparation and presentation of the case.” ORS 135.055(3) (emphasis added). The trial court did not abuse its discretion in so finding.
As to the constitutional claims, the trial court’s provision for extensive voir dire allowed the court and counsel the opportunity to select a jury capable of deciding the case on the evidence presented rather than on anything that the jurors might have heard outside the courtroom. Defendant failed to establish the probable value to him of the public opinion poll in light of the extensive voir dire provided or that there was a significant risk of error in the proceedings without the poll. Ake v. Oklahoma, supra, 470 US at 77. The trial court’s denial of defendant’s motion for expenses for a public opinion poll therefore did not violate his constitutional rights.
Defendant next contends that the trial court erred in denying his challenge for cause of all prospective jurors who knew of his earlier conviction for the aggravated murder of Smith. Specifically, defendant contends that “knowledge of the conviction was so prejudicial that it demonstrated an actual bias from which a prospective juror could not be rehabilitated.” Because five of the jurors at trial were aware of defendant’s conviction for the Smith murder, defendant asserts that he was not tried by an impartial jury, in violation of Article I, section 11, of the Oregon Constitution and the Sixth and Fourteenth Amendments to the United States Constitution.
Defendant’s contention is not persuasive. Although it is questionable whether the court committed error by refusing to excuse those five jurors, any such error was harmless in the circumstances of the present case. Defendant’s complaint is that the five jurors who knew of his conviction for the Smith murder necessarily would be biased against him. However, during the guilt phase of his trial, the state introduced extensive evidence concerning the Smith murder. Because the jury heard substantial evidence about the Smith murder, any concern about prejudice that might have resulted from some jurors’ having knowledge that other jurors did not have was obviated, and any prejudice resulting solely from the five jurors’ prior knowledge would be, at most, insignificant. State v. Pinnell, 311 Or 98, 109, 806 P2d 110 (1991). We conclude, therefore, that there was little, if any, likelihood that those jurors’ prior knowledge affected the jury’s verdict. Ibid.; State v. Isom, 306 Or 587, 595-96, 761 P2d 524 (1988) (explaining standard for harmless error).
In his next assignment of error, defendant contends that the trial court erred in denying his challenge for cause of juror Morgan. He argues that Morgan’s responses on voir dire indicated that she strongly approved of the death penalty and thus could not be an impartial juror, because she would vote to impose the death penalty if defendant were convicted. For essentially the same reasons, defendant also assigns as error the trial court’s refusal to excuse juror Burklund.
With respect to both Morgan and Burklund, defendant’s only argument is that they would have been biased in the penalty phase if defendant were convicted. Defendant never has contended that either juror would not be impartial during the guilt phase of his trial. Because defendant’s sentence of death is being vacated and defendant will be receiving a new penalty-phase proceeding before a new jury, he has suffered no harm by the court’s refusal to exclude Morgan and Burklund for cause. Thus, even if the trial court’s denial of defendant’s challenges to Morgan and Burklund for cause was in error, an issue we need not and do not decide, any error was harmless.
Defendant also assigns as error the trial court’s granting of the state’s challenge for cause of prospective juror Rohm, on the basis of her expression of opposition to the death penalty. The standard for excluding juror Rohm for cause is whether her views concerning capital punishment “would ‘prevent or substantially impair the performance of [her] duties as a juror in accordance with [her] instructions or [her] oath.’ ” State v. Nefstad, 309 Or 523, 536, 789 P2d 1326 (1990) (quoting Wainwright v. Witt, 469 US 412, 424, 105 S Ct 844, 83 L Ed 2d 841 (1985)). The trial court’s ruling granting the state’s challenge for cause implicitly includes a finding that Rohm’s views concerning capital punishment would prevent or substantially impair her performance of her duties as a juror. There is evidence in the record to support that finding. The trial court did not abuse its discretion in excluding prospective juror Rohm for cause. State v. Montez, supra, 309 Or at 574-76.
In his next three assignments of error, defendant contends that the trial court erred in denying his challenges for cause of prospective jurors Thomas, Somers, and Green for implied bias. The basis for defendant’s challenge was ORS 136.220, which provides in part:
“A challenge for implied bias shall be allowed for any of the following causes and for no other:
a* * * * *
“ (2) Standing in the relation of * * * master and servant * * * with the:
“(a) Defendant;
“(b) Person alleged to be injured by the offense charged in the accusatory instrument; or
“(c) Complainant.
“(3) Being * * * in the employment of any person referred to in paragraph (a), (b) or (c) of subsection (2) of this section * *
Defendant argues that the state is the complainant in this case and that, because each of the three challenged jurors was employed by the state — Thomas as a maintenance worker on a bridge crew with the State Highway Division, Somers with the Motor Vehicles Division, and Green with the Oregon Health Sciences Center — the statute mandates their exclusion for cause for implied bias. Defendant asserts that the trial court’s refusal to allow his challenge for cause violated his statutory rights under ORS 136.220 and his constitutional rights to an impartial jury and a fair trial under Article I, section 11, of the Oregon Constitution, and the Sixth and Fourteenth Amendments to the United States Constitution.
In determining what the term “complainant” means in the context of ORS 136.220, we look to the legislation itself. The term “complainant,” which was added to the statute in a 1961 amendment to ORS 136.220, Or Laws 1961, ch 444, § l, is not defined in ORS chapter 136. The 1961 amendment to ORS 136.220 substituted the term “complainant” for the phrase “the person indorsed thereon as the prosecutor” in both subsections (1) and (2) of ORS 136.220. The amendment also reworded and divided former subsection (2) into subsections (2)(a) to (c) and (3) and added the word “or information” after indictment in referring to the charging instrument. It appears that the legislature intended no major substantive changes by the 1961 amendment. In the minutes of the Senate Judiciary Committee, the bill was referred to as a “housekeeping” amendment that would “delete ‘prosecutor’ because the private prosecutor no longer exists in the law.” Minutes, Senate Judiciary Committee (HB 1171), April 13, 1961. There is nothing to suggest that the legislature intended that the state would be the “complainant” and, thus, that all state employees must be disqualified for implied bias from serving on all criminal juries. The language of ORS 136.220, as well as the usage of the term “complainant” elsewhere in the Oregon Revised Statutes, suggests that the legislature intended the term to have a much more limited meaning.
ORS 136.220(3) lists three types of relationships — familial, business partnership, and employment — that give rise to an implied bias sufficient for disqualification. ORS 136.220(3) suggests that the complainant, one of the “person[s]” referred to in ORS 136.220(2)(c), is not the state, because “person” does not ordinarily include the state. See ORS 174.100(4) (defining “person” broadly, but not so broadly as to include the state). Because the complainant is a “person,” and the state is not a “person,” the state is not the complainant referred to in ORS 136.220.
Other provisions support this reading of ORS 136.220. In ORS 135.165, the legislature has distinguished between the complainant and the state, thereby implying that the complainant is not the state. That statute provides:
“The complainant may employ counsel to appear against the defendant in every stage of the preliminary hearing; but the district attorney for the county, either in person or by some attorney authorized to act for the district attorney, is entitled to appear on behalf of the state and control and direct the prosecution.” ORS 135.165 (emphasis added).
In defining the parties in a criminal action, ORS 131.025 provides that “the State of Oregon is the plaintiff,” not that the state is the “complainant.” The statutory definition of a “[c]omplainant’s information” as “a written accusation, verified by the oath of aperson,” ORS 131.005(4), in contrast to a “[djistrict attorney’s information,” which is “a written accusation by a district attorney,” ORS 131.005(9), also suggests that the legislature did not intend the term “complainant” to mean the state. Although it is clear that the complainant is not necessarily the victim of the crime — ORS 136.220(1) and (2)(b) separately refer to “the person alleged to be injured by the offense charged” and “the complainant” — we conclude that the legislature did not intend the broad definition asserted by defendant. Rather, we read ORS 136.220(2)(c) and (3) as providing for the disqualification for implied bias of persons in the specified relationship to persons who verify or swear to an accusatory instrument, such as a prosecuting attorney or grand jurors.
In the present case, there is no contention that any of three jurors challenged for implied bias under ORS 136.220 was employed by the district attorney or any of the grand jurors who returned the indictment. Thus, none of the three jurors could be challenged for implied bias under ORS 136.220, and the trial court did not err in denying defendant’s challenge on that ground.
Further, because defendant has not asserted that any of the three jurors was actually biased or incapable of being an impartial juror, there can be no successful contention that defendant’s state or federal constitutional rights to a fair and impartial jury were violated. See State v. Montez, supra, 309 Or at 594 (rejecting the “argument that ‘common sense and human experience’ suggest that * * * a police officer[] could not serve as a fair and impartial juror in [a capital] case”); see also United States v. Wood, 299 US 123, 147-50, 57 S Ct 177, 81 LEd 78 (1936) (rejecting “imputation of bias simply by virtue of governmental employment”). Because neither ORS 136.220 nor the state or federal constitution required the disqualification of the state-employee jurors, defendant’s claim is not well taken.
ISSUE PRECLUSION
In defendant’s next assignment of error, he argues that the trial court erred in denying his motion to declare him ineligible for the death penalty. He asserts that the sentencing jury’s verdict in the Smith murder trial precluded the state from relitigating the issue of his future dangerousness and, thus, from seeking the death penalty for the Molalla Forest murders.
Pursuant to ORS 163.150(l)(b) (1987), the sentencing jury in the Smith homicide trial returned the following verdict on the three penalty-phase questions submitted:
“One, was the conduct of the defendant, Dayton Leroy Rogers, that caused the death of Jennifer Lisa Smith committed deliberately and with the reasonable expectation that the death of Jennifer Lisa Smith would result?
“Answer. No.
“Two. Is there a probability that the defendant, Dayton Leroy Rogers, would commit criminal acts of violence that would constitute a continuing threat to society?
“Answer. No.
“Three. Was the conduct of defendant, Dayton Leroy Rogers, in killing the deceased, Jennifer Lisa Smith, unreasonable in response to the provocation, if any, by the deceased, Jennifer Lisa Smith?
“Answer. Yes.”
Because one or more questions were answered “no,” defendant was not subject to the death penalty for the aggravated murder of Smith. The sentencing jury in the present case was asked the same three statutory penalty-phase questions with regard to the deaths of the Molalla Forest victims and answered each question “yes,” and defendant therefore was sentenced to death.
Defendant argues that the state was precluded from relitigating the second question, i.e., the issue of his future dangerousness, because the Smith homicide sentencing jury had answered that question in the negative. Defendant argues that all the elements necessary for the application of issue preclusion are satisfied: the parties are the same, the state and defendant; the issue, defendant’s future dangerousness, is the same; the state had a full and fair opportunity to litigate the issue; and the issue actually and necessarily was decided in the prior prosecution. Defendant contends that the preclusion doctrine on which he relies is embodied in Oregon statutory and constitutional provisions, as well as in the prohibition against double jeopardy guaranteed him by the Fifth and Fourteenth Amendments to the United States Constitution.
In State v. Dewey, 206 Or 496, 504-08, 292 P2d 799 (1956), this court held that ORS 43.160, which states a rule of issue preclusion that has its genesis in the common law, applies in criminal cases. ORS 43.160 provides:
“That only is determined by a former judgment, decree or order which appears upon its face to have been so determined or which was actually and necessarily included therein or necessary thereto.”
In discussing the application of issue preclusion in the criminal context, the Dewey court stated:
“Where the second prosecution is for another offense, ‘the previous judgment is conclusive only as to those matters which were in fact in issue and actually or necessarily adjudicated. Thus an acquittal of the charge of seduction does not adjudicate the question of sexual intercourse although that was one of the issues in the case, since the acquittal might have been due to the failure to establish other facts essential to a conviction.’ ” State v. Dewey, supra, 206 Or at 508 (quoting 2 Freeman on Judgments 1364-65, § 648 (5th ed 1925).
See also State v. George, 253 Or 458, 462-63, 466, 455 P2d 609 (1969) (following State v. Dewey, supra-, conviction of a defendant for murder of one of two victims reversed, because the defendant previously had been acquitted of the murder of the other victim and both had died from the same bullet).
The federal prohibition against double jeopardy prevents the state from seeking the death penalty in a retrial of a capital case when the sentencing jury refused to impose the death penalty at the first trial. Bullington v. Missouri, 451 US 430, 444-46, 101 S Ct 1852, 68 L Ed 2d 270 (1981) (because the penalty phase of a capital trial is like a trial on the issue of guilt or innocence, a verdict against the state demonstrates the jury’s conclusion that the state failed to prove its case and is entitled to the same finality that characterizes an acquittal, even one on an erroneous ground). The federal Double Jeopardy Clause does not prevent the state from seeking the death penalty in a separate prosecution of the defendant for a different crime. See United States v. Felix,_US_, 112 S Ct 1377, 1382, 118 L Ed 2d 25, 33 (1992) (“At its root, the Double Jeopardy Clause forbids the duplicative prosecution for the ‘same offence.’ U.S. Const., Arndt. 5”).
There is also an issue preclusion component of the federal Double Jeopardy Clause. ‘ ‘ [W]hen an issue of ultimate fact has once been determined by a valid and final judgment, that issue cannot again be litigated between the same parties in any future lawsuit.” Ashe v. Swenson, 397 US 436, 443, 90 S Ct 1189, 25 L Ed 2d 469 (1970). In Ashe, the defendant was indicted in connection with the robbery of six players in a poker game. Id. at 437-38. Initially, he was tried for the robbery of one of the six players. Id. at 438. After he was acquitted, the state tried him for the robbery of another of the players. Id. at 439. The trial record from the first prosecution revealed that the sole issue litigated was whether the defendant was one of the robbers. Id. at 444-45 & n 9. Because the first jury’s verdict was premised on the state’s failure to prove the defendant’s identity as one of the robbers, the Court held that the state was precluded from relitigating that issue, and the second prosecution was barred. Id. at 445-46. As noted above, the rule of issue preclusion is essentially the same in Oregon. State v. George, supra, 253 Or at 462-63; State v. Dewey, supra, 206 Or at 508.
The question here is whether the issue decided in the prior trial for the Smith homicide is the same issue that was presented to the jury in this case. The sentencing jury in the Smith case was instructed (as was the sentencing jury in the present case) as follows with regard to the second penalty-phase question:
“The second question asked by the law is:
“Is there a probability that the defendant would commit criminal acts of violence that would constitute a continuing threat to society?
“In determining this issue, you must consider any mitigating circumstances received in evidence, including, but not limited to, defendant’s age, the extent and severity of the defendant’s prior criminal conduct, and the extent of the mental and emotional pressure under which the defendant was acting at the time the killing was committed.”
The issue presented by the second question in the present case differs from the second-question issue in the Smith case, because the sentencing jury in each case had to determine whether, based on everything in defendant’s life to that point in time (including “the extent of the mental and emotional pressure under which the defendant was acting at the time the killing was committed”), defendant likely would be dangerous in the future. See State v. Moen, 309 Or 45, 73, 786 P2d 111 (1990) (“Evidence of all of a defendant’s prior conduct, bad and good, is precisely the type of evidence that the jury needs to make this determination”); Wagner II, supra, 309 Or at 19 (“all aspects of a defendant’s character and background are ‘relevant to sentence’ ”). The trial in the present case took place nearly one year after the Smith homicide trial. Because everything that has occurred in a defendant’s life may be relevant to a determination of that defendant’s future dangerousness, the second-question determination necessarily incorporates a temporal element. The jury must determine a defendant’s future dangerousness from the day on which the jury makes its determination forward, based on the defendant’s life from that day backward. The year of defendant’s life between the two trials and defendant’s subsequent conviction in the guilt phase of this case had not yet occurred at the time the Smith homicide jury rendered its verdict.
In the present case, the second-question issue was, based on defendant’s conduct and character up to the time of trial and the convictions and the circumstances of the aggravated murders of the six Molalla Forest victims, whether defendant would pose a continuing threat to society. That issue is not the same issue decided by the Smith homicide jury. Because the sentencing juries were making their determinations at different times and based on different evidence — some of which was not available at the time of the Smith homicide trial — the sentencing verdicts in the two cases are neither inconsistent nor irreconcilable.
Because the second-question issue by its nature involves a temporal element — the future — and is based on a broad inquiry into a defendant’s life bounded only by the present, the point at which the jury decides the issue, the issue to be decided changes continuously with time. Issue preclusion therefore is not available to defendant. The trial court did not err in denying defendant’s motion to be declared ineligible for the death penalty.
ISSUES CONCERNING THE TRIAL
Defendant’s next assignment of error concerns the trial court’s admission of evidence of other crimes and bad acts committed by defendant. Before trial, the state sought a ruling from the court concerning the admissibility of evidence about the Smith homicide and defendant’s conduct with other prostitutes over the three and one-half years preceding his arrest for the Smith homicide. The state contended that this “other crimes” evidence was relevant to establish defendant’s identity as the Molalla Forest murderer and to establish that defendant intended to torture, kidnap, sexually abuse, and kill his victims.
The trial court considered the state’s offer of proof and issued a letter opinion, in which the court made preliminary findings of fact regarding the predicates for admissibility of other crimes evidence. The court concluded that some of the state’s proffered evidence would be admissible. Because there is evidence to support the trial court’s findings, there was no error in admitting the other crimes evidence. State v. Carlson, 311 Or 201, 214, 217-19, 808 P2d 1002 (1991) (applying Ball v. Gladden, 250 Or 485, 487, 443 P2d 621 (1968), to an OEC 104(1) determination by a trial court); State v. Pinnell, supra, 311 Or at 109-11 (affirming the trial court’s OEC 104(1) findings regarding the admissibility of other crimes evidence); see also State v. Johnson, 313 Or 189, 195-97, 832 P2d 443 (1992) (setting forth the framework for analysis of other crimes evidence).
Defendant next contends that the trial court erred in overruling his demurrer to, and in denying his motion in arrest of judgment on, the third count of the indictment concerning the death of Cervantes for aggravated felony murder based on the commission or the attempt to commit the felony of sexual abuse in the first degree. Defendant argues that Count III of the indictment concerning Cervantes’ death is indefinite and uncertain, because it does not set forth the theory of culpability for the felony underlying the aggravated murder charge. Defendant also asserts that, because the statutes authorize a conviction for aggravated felony murder for a murder committed during attempted first degree sexual abuse, ORS 163.095(2)(d) and 163.115(l)(b)(H), and because attempted first degree sexual abuse was a misdemeanor, ORS 163.425(2) (1989) and 161.405, Count III of the indictment for the death of Cervantes authorizes an aggravated murder conviction based on a misdemeanor. According to defendant, that possible result renders this application of the aggravated murder provisions unconstitutional as providing for cruel and unusual punishment. Defendant also contends that the aggravated murder statutes unconstitutionally deny him equal protection, because irrational classifications potentially subject defendants like him to a sentence of death for “aggravated misdemeanor murder” while the death penalty is not available for defendants convicted of intentional murder committed in the course of committing other felony sexual offenses.
There is no constitutional infirmity in Count III of the indictment concerning Cervantes’ death. There is nothing irrational about the legislature’s determination that those who commit intentional murder in the course of committing or attempting to commit a first degree felony sex crime should be subject to possible imposition of the death penalty. Nor was it irrational for the legislature to include an attempt to commit a first degree felony sex crime, but not completed second or third degree felony sex crimes, in that classification. Rather, the legislature implicitly concluded, and could rationally conclude, that, because the difference between an attempted and a completed crime may be due to circumstances beyond a defendant’s control, an intentional murder committed during an attempt to commit a first degree felony sex crime is more repugnant than an intentional murder committed during the course of a second degree felony sex crime.
With respect to defendant’s argument that imposition of the death penalty for what he characterizes as “aggravated misdemeanor murder” amounts to cruel and unusual punishment in violation of the state and federal constitutions, defendant’s argument essentially is one of proportionality.
Article I, section 16, of the Oregon Constitution provides in part:
“Excessive bail shall not be required, nor excessive fines imposed. Cruel and unusual punishments shall not be inflicted, but all penalties shall be proportioned to the offense.”
The Eighth Amendment to the United States Constitution provides:
“Excessive bail shall not be required, nor excessive fines imposed, nor cruel and unusual punishments inflicted.”
The standard for determining whether punishment is cruel and unusual is whether “the punishment [is] so proportioned to the offense committed as to shock the moral sense of all reasonable men as to what is right and proper under the circumstances.” Sustar v. County Court of Marion County, 101 Or 657, 665, 201 P 445 (1921) (citing Weems v. United States, 217 US 349, 367, 30 S Ct 544, 54 L Ed 793 (1910), for the Eighth Amendment standard and adopting that standard for purposes of Article I, section 16, of the Oregon Constitution); accord Cannon v. Gladden, 203 Or 629, 632, 281 P2d 233 (1955). Defendant asserts that it would shock the moral sense of reasonable people to impose the death penalty on the basis of a conviction for “aggravated misdemeanor murder.” We disagree. Imposition of the death penalty for an intentional murder committed by a person who was attempting to commit sexual abuse in the first degree would not shock the moral sense of reasonable people.
Finally, with respect to defendant’s claim that Count III of the indictment is indefinite and uncertain because it does not specify the state’s theory or the elements of sexual abuse, such a recitation of the elements was unnecessary. In State v. Montez, supra, 309 Or at 597, this court held that an aggravated murder indictment alleging concealment of other crimes as the aggravating factor need not set forth the elements of the underlying crimes. The present case is no different. The indictment tracks the language of ORS 163.095(2)(d) and 163.115(l)(b)(H), the aggravated murder provisions with which defendant was charged. That is all that is required. Ibid. Therefore, the trial court did not err in overruling the demurrer and denying the motion in arrest of judgment as to Count III of the indictment concerning Cervantes’ death.
Defendant also assigns as error the trial court’s denial of his motion for mistrial based on a contact between one of the trial jurors and the mother of one of the victims in a courthouse rest room. Whether to grant a mistrial is a determination committed to the sound discretion of the trial court. As this court stated in State v. Smith, 310 Or 1, 24, 791 P2d 836 (1990):
“Our scope of review on the issue of whether a mistrial should have been declared is one of abuse of discretion: ‘We have consistently held that a motion for a mistrial is addressed to the sound discretion of the trial judge.’ State v. Jones, 242 Or 427, 433, 410 P2d 219 (1966). See State v. Farrar, 309 Or 132, 164, 786 P2d 161 (1990) (Trial judge is in the best position to ‘assess and rectify the potential prejudice to the defendant.’). The question thus is not whether this court would have granted a new trial to defendant, but whether the trial court abused its discretion in refusing to do so.”
Defendant argues that the trial court abused its discretion in denying his motion for mistrial.
Specifically, defendant contends that the trial court should have declared a mistrial after juror S. had a brief encounter, during the trial, in a courthouse rest room with the mother of one of the victims. On the fourth day of the guilt phase of the trial, while S. was washing her hands, she was approached lay J., the mother of victim Hodges. J. told S. either that she wanted “to thank” her or that she “appreciate^] what [S. was] doing.” J. did not identify herself and S. did not respond to J.’ comment. Juror S. then left the rest room and reported the contact to the bailiff.
The following morning, in chambers and out of the presence of the jury, the court questioned S. and J. separately. Both S. and J. gave essentially the same account of their encounter in the rest room. S. testified that she had assumed that J. was defendant’s mother and that after the encounter she had told only the bailiff and no other jurors about it. She also testified that she did not believe that the encounter would affect her decision in any way. Defendant moved for a mistrial, arguing that S. would realize that J. was not defendant’s mother and that she was being thanked in advance for convicting defendant and imposing a death sentence. The trial court denied the motion for mistrial, finding that S. was credible when she testified that she would decide the case based on the evidence presented and that the encounter would not affect her judgment. At defendant’s request, the court gave the jury a cautionary instruction directing them to avoid all contact with the participants in this case.
The trial court did not abuse its discretion in denying defendant’s motion for mistrial. The trial judge was in the best position to assess the potential prejudice to defendant and to rectify it. State v. Farrar, 309 Or 132, 164, 786 P2d 161, cert den sub nom Wagner v. Oregon,_US_, 111 S Ct 212 (1990). The court’s finding that juror S. was not contaminated by the contact and could still serve as an impartial juror was made after observing her testify. The record supports that finding. The court’s cautionary instruction reiterated to the jury that the case was to be decided only on the evidence presented in the courtroom and that the jurors should not discuss the case as it was unfolding. Thus, the court acted to rectify the prejudice, if any, that may have resulted from S.’s contact with J.. There was no error.
In another guilt-phase assignment of error, defendant contends that the trial court should have instructed the jury that all the elements of the underlying felony had to be proven beyond a reasonable doubt in order to convict defendant of aggravated felony murder. He argues that the court’s instructions were incorrect and prejudicial because they allowed the jury to convict on less than proof beyond a reasonable doubt as to the elements of the underlying felonies and could have resulted in a verdict that was not unanimous. The state asserts that defendant’s proposed instructions were incorrect because, inter alia, they improperly would have required the jury to find that defendant had committed the underlying felony in order to convict him of aggravated murder, whereas an attempt to commit the underlying felony would suffice. The state also argues that the instructions given were accurate and complete and that the trial court was under no obligation to give the instructions in defendant’s wording.
The trial court’s instructions told the jury that it must find each of the elements of aggravated felony murder beyond a reasonable doubt, including
“That the defendant either alone or with one or more persons committed or attempted to commit the [underlying felony];
“And that in the course of and in the furtherance of the [underlying felony], which the defendant was committing or attempting to commit, the defendant personally and intentionally caused the death of [the victim], who was not a participant in the crime.”
The trial court’s instructions then described the elements of each of the underlying felonies — kidnapping in the first degree, kidnapping in the second degree, and sexual abuse in the first degree — without reiterating that the state must prove the elements of the underlying felonies beyond a reasonable doubt. The instructions proposed by defendant concerning the aggravated felony murder counts reiterated the burden of proof before describing the elements of the underlying felonies.
The instructions given by the court accurately stated the law. The court was not required to give the burden of proof instructions in the particular form requested by defendant. State v. Montez, supra, 309 Or at 600-01. The court’s instructions told the jury that it had to find beyond a reasonable doubt that defendant had committed or attempted to commit the underlying felony in the course of or in the furtherance of which he personally and intentionally caused the death of each victim, in order to convict him of each count of aggravated felony murder. Additionally, the court had instructed the jury generally that the burden of proof was on the state to prove the elements of each of the 13 counts of aggravated murder beyond a reasonable doubt. Read as a whole, the instructions clearly and distinctly informed the jury of the burden of proof on each of the counts of aggravated felony murder. See State v. Gowin, 241 Or 544, 548, 407 P2d 631 (1965) (instructions as a whole definitely advised the jury of the law). The court therefore did not err in refusing to give defendant’s requested instructions and in giving the instructions that it gave concerning the aggravated felony murder counts.
Defendant’s last guilt-phase assignment of error is an attack on the sufficiency of the evidence and the trial court’s denials of his motions for judgments of acquittal. Defendant’s primary contention is that there was not sufficient evidence to establish beyond a reasonable doubt that he tortured, kidnapped, or sexually abused any of the Molalla Forest victims. In State v. King, 307 Or 332, 339, 768 P2d 391 (1989), this court stated:
“In ruling on the sufficiency of the evidence in a criminal case, the relevant question is whether, after viewing the evidence in the light most favorable to the state, any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt. State v. Harris, 288 Or 703, 721, 609 P2d 798 (1980). It is not proper for us to hold that there is a reasonable doubt because of conflicts in the evidence. After a verdict of guilty, such conflicts must be treated as if they had been decided in the state’s favor. After the conflicts have been so decided, we must take such decided facts together with those facts about which there is no conflict and determine whether the inferences that may be drawn from them are sufficient to allow the jury to find defendant’s guilt beyond a reasonable doubt. Our decision is not whether we believe defendant is guilty beyond a reasonable doubt, but whether the evidence is sufficient for a jury so to find. State v. Krummacher, 269 Or 125, 137-38, 523 P2d 1009 (1974).”
Accord State v. Walton, 311 Or 223, 241-42, 809 P2d 81 (1991); see Jackson v. Virginia, 443 US 307, 319, 99 S Ct 2781, 61 L Ed 2d 560 (1979) (same standard for reviewing sufficiency of the evidence under the Fourteenth Amendment).
Defendant argues that there was no evidence that any of the victims was tortured. The aggravating factor of torture, ORS 163.095(l)(e), requires a separate specific intent to inflict intense physical pain, apart from the intent to do the acts causing death. State v. Cornell/Pinnell, 304 Or 27, 32, 741 P2d 501 (1987). Defendant asserts that there was no direct evidence that any of the victims suffered intense pain separate from the acts causing their deaths and that the other crimes evidence was not admissible for this purpose. Defendant’s arguments with regard to the aggravated felony murder counts based on kidnapping and sexual abuse are also premised on his contention that there was no direct evidence of the underlying felonies and that the other crimes evidence was not admissible to prove that he intentionally deceived or confined any of the victims or that he forcibly subjected Cervantes to sexual contact by cutting off her nipple.
Defendant misconceives the limitation on other crimes evidence reflected in OEC 404(3). As this court concluded in State v. Johns, 301 Or 535, 548, 725 P2d 312 (1986), OEC 404(3) is an inclusionary rule. Other crimes evidence is admissible if (1) it is independently relevant for a material purpose other than to establish a propensity to commit crimes, (2) the proponent has offered sufficient proof that the other crimes were committed and that the defendant committed them, and (3) the other crimes evidence is not subject to exclusion under OEC 403. Id. at 548, 555; State v. Johnson, supra, 313 Or at 195.
In the present case, the physical evidence — specifically, the condition of the mutilated bodies — indicated repeated stabbing and cutting wounds in addition to severed limbs. There was testimony that the infliction of those wounds would have caused intense physical pain to a victim who was alive and conscious. Other evidence established that defendant used cutting devices intentionally to inflict intense pain to prostitutes with whom he had encounters. In fact, several of the prostitute witnesses testified that defendant stopped inflicting pain when they stopped resisting him and exhibiting their pain. An inference may be drawn from that evidence that defendant intended to cause pain as a separate objective because, when his victims no longer appeared to be experiencing such pain, he stopped causing them pain. The other crimes evidence was admissible to prove that he had the same separate objective intentionally to cause intense pain to the Molalla Forest victims by inflicting stabbing and cutting wounds to them before killing them. See State v. Walters, 311 Or 80, 84-85 & n 5, 804 P2d 1164 (“[t]he jury could reasonably infer from that [other crimes] evidence that defendant possessed the identical intent to kidnap, rape, and sodomize this [victim]”), cert den 111 S Ct 2807 (1991).
With regard to the aggravated felony murder/ kidnapping counts, there was sufficient evidence from which the jury could infer that defendant intended to deceive the Molalla Forest victims into accompanying him to the remote site in the forest where they were killed. Although several of the prostitute witnesses testified that they willingly accompanied defendant, they did so because of his promises not to harm them. When defendant in fact did harm them after tying them up, several of the prostitute witnesses testified that defendant refused at first to untie them and take them back to the city. One prostitute testified that she jumped out of defendant’s pickup truck naked in order to escape from him. Although the witnesses’ encounters may have begun consensually, defendant’s conduct afterwards is indicative of both his intent to deceive those women initially and his intent to confine them against their wills. See State v. Amell, 303 Or 355, 358-60, 736 P2d 561 (1987) (even where an encounter begins consensually, a defendant commits kidnapping by deception where the defendant intends to interfere substantially with the liberty of another person, makes a misrepresentation calculated to induce reliance by that person to accomplish the interference, and that person relies on the misrepresentation). Further, the physical evidence found at the crime scene included binding devices, and one of the victims was found with her hands tied together above her head. Given that physical evidence and the other crimes evidence concerning defendant’s intent with respect to the prostitute witnesses, it was reasonable for the jury to infer that, in taking the six victims to the Molalla Forest area, defendant had the same intent to deceive and confine them, and thus killed them in the course of kidnapping or attempting to kidnap them. State v. Walters, supra, 311 Or at 84-85 & n 5.
Finally, with respect to the aggravated felony murder/sexual abuse count concerning the death of Cervantes, it was reasonable for the jury to infer that defendant cut off her nipple in order to gratify his sexual desires and that she did not consent to his doing so. The fact that the injuries to her breast would have been extremely painful and thus particularly gratifying to defendant is supported by other evidence concerning defendant’s intent to cause intense pain and his conduct in threatening to cut, biting, or pinching the breasts of most of the prostitute witnesses in order to satisfy his sexual desires by causing them pain. Further, because defendant’s sexual desires were not satisfied when his victim stopped experiencing pain, the jury reasonably could infer that defendant had caused the injuries to Cervantes’ breasts while she was alive. The other crimes evidence establishing his intent to sexually abuse and the physical evidence of that forcible sexual contact was sufficient for the jury to find beyond a reasonable doubt that defendant personally and intentionally killed Cervantes in the course of sexually abusing her.
Because there was sufficient evidence to support the jury’s verdict on each of the 13 counts of aggravated murder, the trial court did not err in denying defendant’s motions for judgments of acquittal. In sum, we have considered all of defendant’s guilt-phase assignments of error, including those not specifically discussed herein, and have concluded that no reversible error was committed by the trial court.
ISSUES RELATING TO THE PENALTY PHASE
Defendant’s other assignments of error concern the penalty phase of his capital trial. Because defendant’s sentencing jury was not asked the so-called “fourth question” — whether the death penalty is appropriate for this defendant, considering all aspects of his life and crimes — this court’s decision in Wagner II, supra, 309 Or at 7, 16, requires a remand for a new penalty-phase proceeding so that the “sentencing jury [is] given an effective opportunity to consider all aspects of * * * defendant’s life and crime[s] in fixing the appropriate sentence.” See ORS 163.150(1), (2), and (5)(a) and (d) (1991) (setting forth the procedures applicable on remand).
Defendant’s remaining penalty-phase assignments of error concern conduct specific to the last sentencing jury which is moot, specific penalty-phase jury instructions that may not be given or refused on remand, and the constitutionality of Oregon’s death penalty statutes, which this court has previously upheld. Wagner II, supra, 309 Or at 16. Because it is likely to recur on remand, we do address one of defendant’s penalty-phase assignments of error.
Defendant contends that the trial court erred in refusing to give the following proposed instruction:
“In determining which penalty to impose upon defendant, you may consider the irrevocable nature of the death penalty, as well as any residual doubt you may have as to any of the elements of the offenses for which defendant has been convicted.
“Residual doubt means that doubt that exists as to any of the element of the offenses for which defendant was charged, and exists when, although the evidence suffices to sustain the verdict of conviction of the crime, the evidence nonetheless does not foreclose all doubt as to defendant’s guilt.
“In determining whether residual doubt exists as to defendant’s guilt for purposes of assessing the penalty to be imposed, you may consider any factor creating such doubt, including, but not limited to: defendant’s plea of the circumstantial nature of evidence; not guilty; the possibility of mistake by the judicial system; and the irrevocable nature of the death penalty.”
Defendant argues that this so-called “residual doubt” instruction is a companion to the instructions concerning mitigation and the “fourth question” which should have been, but were not, given by the trial court.
In Wagner II, this court held that the federal constitution requires that a capital sentencing jury be given an adequate opportunity to consider all mitigating evidence and suggested that the sentencing jury be asked a “fourth question.” 309 Or at 13-16. The decision in Wagner II was made on remand from Wagner v. Oregon, 492 US 914, 109 S Ct 3235, 106 L Ed 2d 583 (1989), in which the Supreme Court of the United States vacated this court’s decision in State v. Wagner, 305 Or 115, 752 P2d 1136 (1988) (Wagner D (affirming the conviction and death sentence for that defendant), and remanded for reconsideration in light of Penry v. Lynaugh, 492 US 302, 109 S Ct 2934, 106 L Ed 2d 256 (1989). Wagner v. Oregon, supra, 492 US at 914. Our decision in Wagner II therefore was based on federal law. Wagner II, supra, 309 Or at 13, 16.
Defendant’s argument concerning residual doubt is premised on Wagner II’s reading of federal law. As a matter of federal law, defendant has no right to an instruction concerning residual doubt. Penry v. Lynaugh, supra, 492 US at 320; see also Franklin v. Lynaugh, 487 US 164, 173-74, 108 S Ct 2320, 101 L Ed 2d 155 (1988) (plurality) (no constitutional right to a residual doubt instruction); id. at 187-88 (concurrence in the judgment) (same).
Defendant makes no claim under any state statute or constitutional provision. In a sense, defendant’s requested instruction suggests that there is really a fifth question that the jurors must consider. There is no basis in the law for giving such an instruction. Therefore, the trial court did not err in refusing to instruct the sentencing jury concerning residual doubt.
CONCLUSION
We have considered all of defendant’s guilt-phase assignments of error and have concluded that the trial court did not commit reversible error with respect to any of them. With respect to the penalty phase, the state was not precluded from seeking the death penalty for the crimes charged. However, because the sentencing jury was not asked the so-called “fourth question,” defendant is entitled to a new penalty-phase proceeding. On remand, defendant is not entitled to an instruction on residual doubt.
The judgments of conviction for aggravated murder and aggravated felony murder are affirmed. The sentence of death is vacated. The case is remanded to the circuit court for further proceedings consistent with this opinion.
Five jurors who sat on the case were aware that defendant had been convicted of killing Smith. Although the evidence in the present case did not include the fact of defendant’s conviction, it did include the events that were the basis of that conviction. In any event, defendant did not specifically challenge any of the five for cause and the trial court determined to its satisfaction that those jurors would decide the case on the evidence and not on what they might have known before the trial. See Patton v. Yount, 467 US 1025, 1035-38, 104 S Ct 2885, 81 L Ed 2d 847 (1984) (upholding trial court’s finding that jurors would be impartial despite the fact that some jurors remembered the case from the defendant’s first trial).
Defendant has not argued that the analysis of his state constitutional claim, based on Article I, section 11, differs from the analysis of his federal constitutional claim under Ake v. Oklahoma, 470 US 68, 105 S Ct 1087, 84 L Ed 2d 53 (1985).
As discussed ante, a prospective juror’s prior knowledge concerning a case does not disqualify the juror unless the juror has “such fixed opinions that [he or she] could not judge impartially the guilt of the defendant.” Patton v. Yount, supra note 1, 467 US at 1035; accord State v. Savage, 36 Or 191, 203, 60 P 610 (1900).
Defendant asserts that Garrison v. City of Portland, 2 Or 123, 124 (1865), which held that taxpayers of a public body may not sit as jurors in any case in which the public body has a pecuniary interest, stands for the proposition that even a remote interest in the litigation is sufficient to disqualify a juror. However, as defendant acknowledges, Garrison has been overruled. State ex rel Douglas County v. Sanders, 294 Or 195, 200, 655 P2d 175 (1982) (the remote interest of a juror resulting from his or status as a taxpayer is insufficient to justify automatic disqualification).
Oregon Laws 1961, chapter 444, section (1), with deleted language in brackets and new language italicized, provided in part:
“ORS 136.220 is amended to read:
“136.220 A challenge for implied bias may be taken for any of the following causes and for no other:
“(1) Consanguinity or affinity within the fourth degree to the person alleged to be injured by the crime charged in the indictment or information, to [the person indorsed thereon as the prosecutor] the complainant or to the defendant.
“(2) [Standing in the relation of guardian and ward, attorney and client, master and servant, or landlord and tenant with the defendant or the person alleged to be injured by the crime charged in the indictment or indorsed thereon as the prosecutor, or beingamember of the family, a partner in business with, or in the employment on wages for, either of such persons, or being a surety or bail in the action or otherwise for the defendant.]
‘ ‘Standing in the relation of guardian and ward, attorney and client, master and servant or landlord and tenant with the:
“(a) Defendant;
“(b) Person alleged to be injured by the crime charged in the indictment or information; or
“(c) Complainant.
“(3) Being a member of the family, a partner in business with or in the employment of any person referred to inparagraph (a), (b) or (c) of subsection (2) of this section or a surety or bail in the action or otherwise for the defendant.”
The original bill proposing the amendment of ORS 136.220 provided that “a witness” should be substituted for “the person indorsed thereon as the prosecutor” in ORS 136.220(1). The House Judiciary Committee amended the bill by substituting “the complainant” for “a witness” before reporting it to the floor of the House with a “do pass as amended” recommendation. Minutes, House Judiciary Committee (HB1171), March 2,1961, at p 4. With regard to subsection (2) of ORS 136.220 — the provision at issue here — “the complainant” appeared in both the original bill and the bill enacted by the legislature.
The phrase “the crime charged in the indictment or information” has since been replaced by “the offense charged in the accusatory instrument.” Or Laws 1973, ch 836, § 232.
Although this error is considered more appropriately as a penalty-phase assignment of error, defendant has grouped it with his guilt-phase assignments of error, apparently because the motion was made during the pretrial proceedings. In any event, we will decide this penalty-phase issue, because, if defendant is correct, the state may not seek to impose the death penalty in this case and it would be pointless to remand for a new penalty-phase proceeding.
ORS 163.150 sets forth the procedures for conducting the penalty phase of a trial for aggravated murder. The 1987 version of the statute, which was in effect during both prosecutions of defendant, differed slightly from the 1985 statute, but only in ways not apposite to the present case. ORS 163.150 was amended alsoin 1989 and 1991. Because the trial court in the present case did not submit to the sentencing jury the statutorily authorized “ ‘fourth question,’ i.e., a query whether the death penalty is appropriate for this defendant, considering all aspects of his life and crime,” and such a question is constitutionally required, this case must be remanded for a new sentencing proceeding. Wagner II, supra, 309 Or at 7, 16; see discussion post 313 Or at 387.
Although defendant, the federal cases, and older Oregon cases refer to the doctrine of “collateral estoppel,” this court has noted that it is more precise to refer to “collateral estoppel” as “issue preclusion.” Drews v. EBI Companies, 310 Or 134, 139, 795 P2d 531 (1990).
This instruction was based on ORS 163.150(1)(b)(B) (1987), which provided for the consideration of mitigating circumstances in connection with the second question. In State v. Wagner, 305 Or 115, 166-67, 752 P2d 1136 (1988) (Wagner I), vacated on other grounds sub nom Wagner v. Oregon, 492 US 914, 109 S Ct 3235, 106 L Ed 2d 583 (1989), this court held that ORS 163.150(1)(b) (1987) permitted a sentencing jury to consider mitigating evidence in answering all penalty-phase questions. In 1989, the legislature amended ORS 163.150 to make it explicit that the jury should consider mitigating evidence with regard to all the penalty-phase questions. ORS 163.150(1)(c) (1989).
Defendant, in fact, offered evidence of his good behavior while incarcerated prior to his trial in this case as probative on the issue of future dangerousness. In rebuttal, the state offered evidence, through the testimony of a psychologist, that defendant’s conduct in prison suggested that defendant could be dangerous in the future in a prison society. See State v. Douglas, 310 Or 438, 450, 800 P2d 288 (1990) (“society” for purposes of future dangerousness determination includes prison society).
The Smith sentencing jury was instructed that it must consider “the extent of the mental and emotional pressure under which the defendant was acting at the time the killing was committed,” in answering the second question. In order to determine defendant’s mental and emotional state at the time of the killings, the juries necessarily would have to examine the circumstances of the aggravated murder of Smith. The sentencing jury in this case was given the same instruction concerning the second question and thus would have to look at the evidence concerning the circumstances of the aggravated murders of the Molalla Forest victims in order to determine defendant’s mental and emotional state at the times of those killings. Hence, the second-question issues in the two cases were not the same.
Although the trial court did not issue final written findings of fact, “we will presume that the facts were decided in a manner consistent with the ultimate conclusion.” Ball v. Gladden, 250 Or 485, 487, 443 P2d 621 (1968).
In Oregon Laws 1991, chapter 830, sections 2 and 3, the legislature amended ORS 163.425 and added ORS 163.427, making first degree sexual abuse a Class B felony, for which an attempt is a Class C felony. ORS 161.405(2)(c).
Even if this court were inclined to set aside the aggravated felony murder/sexual abuse count of the indictment concerning Cervantes’ death, defendant has suffered no harm from its presence in the case and would not be entitled to any relief. Defendant was found guilty of two other counts of aggravated murder for killing Cervantes as well as two counts for each of the other five identified Molalla Forest victims. The evidence establishing the sexual abuse would have been part of the case in any event, because it was also evidence of intentional torture by defendant of Cervantes. Thus, even if the trial court should have dismissed the sexual abuse count, defendant still has been convicted properly of 12 counts of aggravated murder.
[OPINION BY FADELEY, J., type=dissent]
FADELEY, J.,
dissenting in part.
I dissent from the remand for a new penalty-phase trial for the reason stated in the first three paragraphs of the dissenting opinion in State v. Williams, 313 Or 19, 44-45, 828 P2d 1006 (1992).
Specifically, the homicide in this case occurred at a time when the Oregon statute did not meet federal constitutional muster. The Supreme Court of the United States vacated the sentence and remanded a death penalty case to this court in Wagner v. Oregon, 492 US 914, 109 S Ct 3235, 106 L Ed 2d 583 (1989). Thereafter, this court, by a majority vote, added 100 words to the statute in an effort to save it from the constitutional infirmity. See State v. Moen, 309 Or 45, 102-04, 786 P2d 111 (1990) (Fadeley, J., dissenting, detailing the 100-word addition to statute). The statute had been initiated and adopted in 1984.1 do not believe this court had authority to make a substantial, significant, and after-the-fact addition to the 1984 statute that the people, by their vote adopting it, did not include.
Only the legislative branch may enact penal laws. I dissent.
Argued and submitted January 8, 1999,
sentence of death vacated, and case remanded to circuit court for further proceedings May 4, 2000
STATE OF OREGON, Respondent, v. DAYTON LEROY ROGERS, Appellant.
(CC 88-355, 88-356, 88-357, 88-358, 88-359, 88-360; SC S41392)
4 P3d 1261
Diane L. Alessi, Deputy Public Defender, Salem, argued the cause for appellant. With her on the briefs was Sally L. Avera, Public Defender, Salem.
Janet Metcalf, Assistant Attorney General, Salem, argued the cause for respondent. With her on the briefs were Theodore R. Kulongoski, Attorney General, Virginia L. Linder, Solicitor General, and David B. Thompson, Assistant Attorney General. Robert B. Rocklin, Assistant Attorney General, Salem, filed a supplemental brief for respondent.
Before Carson, Chief Justice, Gillette, Van Hoomissen, Durham, Leeson, and Riggs, Justices.
DURHAM, J.
Kulongoski, J., did not participate in the consideration or decision of this case.
[OPINION BY DURHAM, J. type=majority]
DURHAM, J.
Defendant appeals from a judgment that imposed a sentence of death following his conviction on 13 counts of aggravated murder. The judgment is subject to automatic review in this court. Former ORS 163.150(l)(g), repealed by Or Laws 1999, ch 1055, § l. For the reasons that follow, we vacate the sentence of death and remand this case to the circuit court for further penalty-phase proceedings.
Over a period of time in 1987, police discovered the bodies of seven women in the Molíala Forest. The State Medical Examiner determined that each of the women had been stabbed or cut with a sharp object. When the bodies were discovered, defendant was in police custody as a suspect in the killing of another woman, Smith. Smith had died from multiple stab wounds. Smith and the seven women buried in the Molíala Forest were prostitutes. The facts surrounding the Molíala Forest killings shared other similarities with those surrounding the Smith killing. During the investigation of the Molalla Forest killings, defendant was convicted of aggravated murder for killing Smith, but he was not sentenced to death.
In May 1989, defendant was found guilty of 13 counts of aggravated murder arising out of six of the Molalla Forest killings. In June 1989, the court sentenced defendant to death. On automatic review, this court vacated the death sentence and remanded the case to the trial court for a new penalty-phase proceeding that would include the so-called “fourth question,” as 'explained in State v. Wagner, 309 Or 5, 786 P2d 93 (1990). State v. Rogers, 313 Or 356, 836 P2d 1308 (1992). In May 1994, after a new penalty-phase proceeding before a jury (the remand proceeding), the trial court again sentenced defendant to death.
AVAILABILITY OF THE “TRUE-LIFE” SENTENCING OPTION
During the remand proceeding, the trial court refused to permit the jury, under ORS 163.150(5)(a) (1993) (quoted below), to consider the option of sentencing defendant to life in prison without the possibility of parole and to permit defendant to waive any objection, under the ex post facto provisions of the state and federal constitutions, to the jury’s consideration of that option. Defendant assigns error to that refusal.
When defendant committed his crimes, ORS 163.150 (1985) provided two sentencing options for aggravated murder: death or life in prison with a 30-year minimum (ordinary life). After the first penalty-phase proceeding, the legislature added a third option: life in prison with no possibility of parole (true life). During the remand proceeding, defendant submitted a “motion to accept defendant’s waiver of ex post facto issue and to submit life without parole option to jury with appropriate instructions.” The state opposed the motion, and the trial court refused to allow the jury to consider the true-life option.
Defendant argues that that refusal was erroneous for several reasons, including that criminal defendants may waive any ex post facto challenge. This court addressed a similar issue in State v. McDonnell, 329 Or 375, 987 P2d 486 (1999). In McDonnell, the defendant did not object, on an ex post facto ground or otherwise, to the retroactive application of the true-life sentencing option in his remand proceeding and filed a waiver of any ex post facto objection. The trial court nevertheless refused to apply ORS 163.150(5) (1993), which was in effect at the time of the remand proceeding, and instructed the jury only about the two sentencing options that were in effect when the defendant committed his crime. The defendant was sentenced to death. On review, this court concluded that the trial court erred in refusing to apply ORS 163.150(5) (1993), reasoning that the defendant was entitled to, and did, waive the constitutional protection against ex post facto laws by failing to assert a timely objection or to claim that a post-offense sentencing statute is an ex post facto law. 329 Or at 390, 392.
Defendant argues, as did the defendant in McDonnell, that he was entitled to have ORS 163.150(5) (1993) applied in his remand proceeding. This case, however, presents several variations on McDonnell. First, in this case, the state argues that the legislature did not intend ORS 163.150(5) (1993) to apply in this situation, because, according to the state, defendant’s “trial[ ] commenc[ed]” before July 19, 1989. ORS 163.150(4) (1993). Second, in this case, unlike in McDonnell, the state objected to defendant’s waiver of his ex post facto objections to the application to his remand proceeding of ORS 163.150(5) (1993). Third, the state contends that defendant’s written motion to accept his waiver of his ex post facto objection was inadequate. For the reasons that follow, we hold that those arguments do not require a different result than in McDonnell.
The state first argues that the true-life option should not apply to defendant because, although the legislature intended that ORS 163.150 (1993) would apply retroactively, the legislature, in ORS 163.150(4) (1993), limited that retroactive application to remand proceedings in which the trial had commenced on or after July 19, 1989. The state argues that a “trial commences,” for purposes of ORS 163.150(4) (1993), at the beginning of the first guilt-phase proceeding and, because defendant’s first guilt-phase proceeding began in March 1989, the trial court had no authority to apply the true-life option to defendant.
Defendant responds that ORS 163.150(4) (1993) does not control here. Defendant contends that this court remanded his case for a new penalty-phase proceeding and that ORS 163.150(5) (1993) governs that remand proceeding. ORS 163.150(5)(a)(B) (1993) directs that all three sentencing options be available to the jury in remand proceedings. ORS 163.150(5)(e) (1993) provides that “[t]he provisions of this section * * * shall apply to any defendant sentenced to death after December 6, 1984.” According to defendant, ORS 163.150(5) (1993) evinces a legislative intention that defendants who are sentenced to death after December 6, 1984, have all three sentencing options available if their cases are remanded for new penalty-phase proceedings. Defendant further contends that, even if the effective date provision in ORS 163.150(4) (1993) applies here — meaning that the legislature intended the true-life option to be available to only those defendants whose trials commenced after July 29, 1989 — a “trial commences” not only at the beginning of the first guilt-phase proceeding, but also at the beginning of a new penalty-phase proceeding after remand. According to defendant, because his penalty-phase proceeding after remand began in March 1994, he is among those persons to whom the court may apply the true-life option.
As this court explained in McDonnell, before assessing whether a defendant may or did waive an ex post facto objection to the application of a post-offense statute, we must ascertain whether the legislature intended to adopt retrospective legislation that applies to the situation at hand. 329 Or at 382-83. In McDonnell, this court concluded that the legislature intended that all three sentencing options be available in remand proceedings in which a defendant had been sentenced to death after December 6, 1984. Id. at 383. In essence, the state contends that that conclusion was incorrect because, instead of looking to the effective date in ORS 163.150(5)(e) (1993), the court should have looked to the effective date.in ORS 163.150(4) (1993), an argument that the defendant in McDonnell did not raise. Which provision governs is a question of statutory interpretation to which the methodology summarized in PGE v. Bureau of Labor and Industries, 317 Or 606, 610-12, 859 P2d 1143 (1993), applies.
The relevant parts of ORS 163.150 (1993) provide:
“(l)(a) Upon a finding that the defendant is guilty of aggravated murder, the court * * * shall conduct a separate sentencing proceeding to determine whether the defendant shall be sentenced to life imprisonment, as described in ORS 163.105(l)(c), life imprisonment without the possibility of release or parole, as described in ORS 163.105(l)(b), or death. * * *
“(b) Upon the conclusion of the presentation of the evidence, the court shall submit the following issues to the jury:
“(A) Whether the conduct of the defendant that caused the death of the deceased was committed deliberately and with the reasonable expectation that death of the deceased or another would result;
“(B) Whether there is a probability that the defendant would commit criminal acts of violence that would constitute a continuing threat to society;
“(C) If raised by the evidence, whether the conduct of the defendant in killing the deceased was unreasonable in response to the provocation, if any, by the deceased; and
“(D) Whether the defendant should receive a death sentence.
«* * * * *
“(f) If the jury returns an affirmative finding on each issue considered under paragraph (b) of this subsection, the trial judge shall sentence the defendant to death.
* * * *
“(2)(a) Upon the conclusion of the presentation of the evidence, the court shall * * * instruct the jury that if it reaches a negative finding on any issue under subsection (l)(b) of this section, the trial court shall sentence the defendant to life imprisonment without the possibility of release or parole, as described in ORS 163.105(l)(b), unless 10 or more members of the jury further find that there are sufficient mitigating circumstances to warrant life imprisonment, in which case the trial court shall sentence the defendant to life imprisonment as described in ORS 163.105(l)(c).
«* * * * *
“(4) * * * Subsection (2) of this section shall apply only to trials commencing on or after July 19,1989.
“(5) Notwithstanding subsection (l)(a) of this section, the following shall apply:
“(a) If a reviewing court finds prejudicial error in the sentencing proceeding only, the court may set aside the sentence of death and remand the case to the trial court. * * * Upon remand and at the election of the state, the trial court shall * * *:
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“(B) Impanel a new sentencing jury for the purpose of conducting a new sentencing proceeding to determine if the defendant should be sentenced to:
“(i) Death;
“(ii) Imprisonment for life without the possibility of release or parole as provided in ORS 163.105(l)(b); or
“(iii) Imprisonment for life in the custody of the Department of Corrections as provided in ORS 163.105(l)(c).
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“(d) The new sentencing proceeding shall be governed by the provisions of subsections (1) and (2) of this section. * * *
“(e) The provisions of this section are procedural and shall apply to any defendant sentenced to death after December 6,1984.”
(Emphasis added.)
The state argues that the statute that provides the application date here is ORS 163.150(4) (1993), which directs retroactive application to “trials commencing on or after July 19, 1989.” The state contends that ORS 163.150(5) (1993) applies when a reviewing court finds prejudicial error in the sentencing proceeding only and remands the case to the trial court, as provided in ORS 163.150(5)(a) (1993). ORS 163.150(5)(d) (1993) directs that “[tjhe new sentencing proceeding shall be governed by the provisions of subsections (1) and (2) of this section.” According to the state, the legislature has expressed in ORS 163.150(5)(d) (1993) an intention that ORS 163.150(2) (1993) shall apply to remand proceedings. However, under ORS 163.150(4) (1993), ORS 163.150(2) (1993) applies “only to trials commencing on or after July 19, 1989.” The state concludes that, because the application date of ORS 163.150(2) (1993) is July 19, 1989, and because ORS 163.150(2) (1993) applies to remand proceedings under ORS 163.150(5) (1993), the application date of ORS 163.150(5) (1993) also must lie July 19,1989.
That reasoning is unpersuasive. Although the legislature has expressed an intention that ORS 163.150(2) (1993) apply to remand proceedings, it did not express that intention regarding ORS 163.150(4) (1993). The legislature incorporated the July 19,1989, application date in ORS 163.150(4) (1993), not in ORS 163.150(2) (1993). The legislature provided a specific application date for ORS 163.150(5) (1993) within that section. We may not insert what the legislature has omitted or omit what it has inserted. ORS 174.010; PGE, 317 Or at 611. The state’s proposed construction would require both the insertion into ORS 163.150(5)(d) (1993) of a requirement that the new sentencing proceeding be governed by ORS 163.150(4) (1993) and the omission from ORS 163.150(5) (1993) of the application date that expressly applies to that section. By its terms, ORS 163.150(5)(e) (1993) makes the remand procedure in ORS 163.150(5)(a) (1993)— including all three sentencing options — applicable to “any defendant sentenced to death after December 6, 1984.” Unquestionably, defendant’s case met that requirement because, at the time of the remand proceeding in 1994, the court had sentenced defendant to death after December 6, 1984. We conclude, in accordance with our reasoning in McDonnell, 329 Or at 385, that the legislature intended that ORS 163.150(5)(a) (1993) would apply to the remand proceeding in this case.
In McDonnell, this court held that the defendant’s decision not to invoke the protection of the ex post facto clauses constituted a waiver of those constitutional protections and that his arguments to the trial court and his written waiver indicated that his decision not to invoke his constitutional protection against ex post facto laws was an intentional relinquishment of a known right. 329 Or at 389, 392. Similarly here, defendant intentionally decided not to invoke the protection of the ex post facto clauses. That decision constituted a waiver of the protection afforded by those clauses.
That the state objected to defendant’s waiver in this case, whereas, in McDonnell, it did not, makes no difference to the result. As this court observed in McDonnell, the “claim [that application of ORS 163.150(5) (1993) violated the prohibition against ex post facto laws] was defendant’s to assert, and he did not do so.” 329 Or at 390. Any objection by the state to defendant’s waiver of the protection of the ex post facto clauses has no effect. Because defendant did not invoke those constitutional protections in this case, he waived those protections.
The state also suggests that defendant’s waiver was inadequate because, in his motion to accept his waiver, he did not mention that he was waiving the right to raise ex post facto challenges in post-conviction or federal habeas corpus proceedings or that he waived any challenge to the procedure that could lead to the imposition of a true-life sentence.
To be effective, a defendant’s waiver of the protection of a pertinent statute or constitutional provision need not follow a set formula:
“ ‘A waiver is an intentional relinquishment or abandonment of a known right or privilege.’ State v. Meyrick, [313 Or 125, 132, 831 P2d 666 (1992)]. Although a waiver must be intentional, there is no particular formula for determining whether a waiver has occurred. ‘Whether there has been an intentional relinquishment or abandonment of a known right or privilege will depend upon the particular circumstances of each case * * *.’ Ibid.”
State v. Hunter, 316 Or 192, 201, 850 P2d 366 (1993). In this case, defendant sufficiently indicated that he intentionally was relinquishing his known right to protection against ex post facto laws both in his written motion and in his arguments to the trial court during the hearing on that motion. We conclude that defendant waived his protection against ex post facto laws by choosing not to object to the application of ORS 163.150(5)(a) (1993) in the remand proceeding. The trial court erred in refusing to accept defendant’s waiver.
The trial court’s decision not to apply ORS 163.150(5)(a) (1993) in the remand proceeding was not harmless error. A properly instructed jury might have returned a verdict supporting a sentence other than death. As a consequence, we must vacate the sentence of death and remand the case for further proceedings. See McDonnell, 329 Or at 392 (reaching same conclusion).
We turn to several other issues raised in defendant’s appeal that are likely to recur on remand. See, e.g., State v. Smith, 310 Or 1, 22, 791 P2d 836 (1990) (following that methodology).
RIGHT TO BE HEARD
In his second assignment of error, defendant contends that the trial court erred in limiting an unsworn statement that defendant desired to address to the court and the jury at the end of the penalty-phase proceeding. Before the remand proceeding, defendant moved for permission to make an unsworn statement to the jury after closing arguments. The state moved to require defendant to submit a copy of his proposed statement to the court so that the court could review the statement for relevancy before defendant delivered it to the jury. Defendant responded that any “prior restraint” of his “allocution” was improper. In particular, defendant contended that, under the “fourth question” in capital cases, the scope of permissible allocution is broad, and so it was unlikely that defendant’s statement could stray into irrelevant topics.
After hearing arguments, the trial court ruled:
“Well, my view is that the defendant’s entitled to a statement. * * * [M]y concern is that by providing that opportunity after the conclusion of the evidence in the case and prior to the argument that there needs to be some submission to the Court about the contents of his statement. I think that provides a way that there is a structure, that I can satisfy myself won’t result in error that would cause a mistrial and this process [to] have to be * * * repeated.
“Well, as I indicated, there would be a right of allocution. That would be exercised prior to the arguments of the case. There would be a submission in writing to the Court of the proposed statement. I think that provides the Court with a safeguard on the relevancy and other matters. And I agree that it’s a broad scope here but I think we need to know what’s going to be submitted, particularly given the stage of the proceeding that it is made. * * *”
After the close of evidence, defendant submitted to the trial court the following proposed statement:
“Ladies & Gentlemen of the Jury—
“What I have done [and] caused clearly overshadows anything I can say here today. In no way do I nor can I justify a thing. It’s true that there was a lot of abuse in my raising, but I don’t blame my parents for what I’ve done and caused as an adult. There is never a day that I don’t struggle within the very depths of my heart and soul over the horrible things I’ve done. Because of what I have done, I have literally sentenced the hearts of those family members to a lifetime of precious loss and grief. I have clearly proven to all [and] myself that I don’t belong in the free community and never do.
“Besides the task before you in this case, I am currently serving a life sentence with a 30 year minimum from the previous Smith trial. And your Honor, at this time I respectfully appeal to you that should this jury spare my life, I ask that I be sentenced to consecutive life sentences.”
The trial court struck the last paragraph in its entirety, but allowed defendant to read the remainder of his statement to the jury.
Defendant now argues that the trial court erred in three ways: (1) by requiring him to submit his proposed statement for the court’s review; (2) by requiring him to read a statement to the jury instead of allowing him to speak extemporaneously; and (3) by editing his statement. Defendant contends that those limitations violated his rights under Article I, section 11, of the Oregon Constitution, and the Eighth and Fourteenth Amendments to the United States Constitution. We first consider defendant’s arguments under the Oregon Constitution. See, e.g., State v. Charboneau, 323 Or 38, 53, 913 P2d 308 (1996) (court considers state constitutional claims before federal constitutional claims); State v. Kennedy, 295 Or 260, 262, 666 P2d 1316 (1983) (the court must resolve all questions of state law before reaching federal constitutional arguments).
Defendant argues that Article I, section 11, provides criminal defendants with the right to make unsworn statements to the jury and that the sole permissible limitation on the content of that “allocution” is relevancy. He relies on DeAngelo v. Schiedler, 306 Or 91, 757 P2d 1355 (1988). Defendant further observes that the scope of relevancy in capital cases is particularly broad because, under the “fourth question,” juries may consider, “as a mitigating factor, any aspect of a defendant’s character * * * that the defendant proffers as a basis for a sentence less than death.” State v. Stevens, 319 Or 573, 583, 879 P2d 162 (1994) (citation omitted; emphasis omitted). Thus, according to defendant, a defendant in a capital case is entitled “to speak to the jury in an unrestricted fashion because it is difficult to determine exactly what that jury would consider ‘mitigating’ in deciding a sentence of life or death.” Defendant contends that, because nothing in his proposed statement was irrelevant, the trial court erred in striking the last paragraph. Defendant further argues that his extemporaneous feelings and thoughts constitute an aspect of his “character” from which the jury could have inferred that his life should have been spared and, accordingly, that the trial court erred in requiring him to read from a prepared statement.
The state first responds that the trial court satisfied the constitutional right to be heard by affording the opportunity for defendant to take the stand and offer sworn testimony subject to cross-examination. In giving defendant the opportunity to make an unsworn statement to the jury, the state argues, the trial court gave him more than the constitution requires and cannot be faulted for not giving him much more.
Defendant replies that the state conceded in the trial court that capital defendants have the right to make unsworn statements during the penalty phase and, accordingly, cannot assert a contrary position on appeal. The state denies making that concession and asserts that it conceded only that criminal defendants have a right of “allocution,” which includes the right to take the stand and offer sworn testimony. The state submits that it might have acquiesced before the trial court to the view that an unsworn statement was permissible, but, according to the state, that position is distinguishable from conceding that defendant had a right to make an unsworn statement. The state contends that its position in the trial court is not inconsistent with its present argument. Furthermore, the state argues that, even if it did concede that capital defendants have the right to make unsworn statements to the jury, this court nevertheless may consider the state’s challenge to that proposition in determining whether the trial court correctly limited defendant’s statement, albeit for a reason that the trial court might not have considered.
We agree with the state that we can reach its present argument that criminal defendants have no right to make unsworn statements. When a trial court makes a ruling, we will affirm that ruling on appeal, even if the trial court’s legal reasoning for the ruling was erroneous, if another legally correct reason and, to the extent necessary, the record developed in the trial court support the ruling. See, e.g., State v. Montez, 324 Or 343, 361, 927 P2d 64 (1996) (applying proposition); Tarwater v. Cupp, 304 Or 639, 644 n 5, 748 P2d 125 (1988) (on appeal, party seeking affirmance may change its argument and claim that lower court was right for the wrong reason). The “right for the wrong reason” principle establishes that appellate courts may examine legal arguments not relied on by a trial court to determine if those arguments provide a basis for affirmance. To conclude otherwise could result in reversal of a correct action of a trial court, which would warp the law and waste judicial resources. This court, quoting the Supreme Court of the United States, has stated:
“[W]e do not disturb the settled rule that, in reviewing the decision of a lower court, it must be affirmed if the result is correct ‘although the lower court relied upon a wrong ground or gave a wrong reason.’ * * * The reason for this rule is obvious. It would be wasteful to send a case back to a lower court to reinstate a decision which it had already made but which the appellate court concluded should properly be based on another ground within the power of the appellate court to formulate.”
State v. Nielsen, 316 Or 611, 629 n 12, 853 P2d 256 (1993) (citation omitted).
Furthermore, we find no support in the record for defendant’s argument that .the state conceded below that defendant had a right to make an unsworn statement. It appears that the state did not object in the trial court to allowing defendant to make an unsworn statement to the jury. However, defendant does not cite, and we cannot find, any concession by the state that defendant had a right to make an unsworn statement.
Accordingly, we turn to the question whether defendant had a right to make an unsworn statement to the jury, apart from any right to take the stand and testify under oath. That question requires us to construe Article I, section 11, an original provision of the Oregon Constitution. This court has determined that “the right * * * to be heard by himself’ in Article I, section 11, encompasses the right of all criminal defendants to allocution, which “refers to a convicted defendant’s opportunity to speak before sentencing[.]” DeAngelo, 306 Or at 93 n 1. According to the state, however, DeAngelo leaves open the question of the form that allocution may take. The state is correct that DeAngelo does not resolve that issue directly. Accordingly, we consider the specific wording of Article I, section 11, the historical circumstances that led to its creation, and the case law surrounding it. See Priest v. Pearce, 314 Or 411, 415-16, 840 P2d 65 (1992) (setting out methodology). Our goal is “to understand the wording in the light of the way [the] wording would have been understood and used by those who created the provision,” Vannatta v. Keisling, 324 Or 514, 530, 931 P2d 770 (1997), and to apply faithfully the principles embodied in the Oregon Constitution to modern circumstances as those circumstances arise. See, e.g., State v. Delgado, 298 Or 395, 400-03, 692 P2d 610 (1984) (applying the principle embodied in the “right to bear arms” to weapons analogous to those in existence in 1859).
Article I, section 11, provides, in part:
“In all criminal prosecutions, the accused shall have the right * * * to be heard by himself and counsel[.]”
In particular, in this case, we are concerned with what the framers of the Oregon Constitution meant when they provided that a criminal defendant has “the right to be heard by himself.” The Oregon Constitution establishes that right in conjunction with the right to be heard by counsel. That suggests that the framers intended that the content of that right be similar to the right to be heard by counsel, i.e., that a criminal defendant has the right to represent himself. Accordingly, the wording of Article I, section 11, supports defendant’s view that he may present argument without taking the stand, similar to the way in which his counsel may make an unsworn closing statement to the factfinder.
We turn to the historical circumstances that led to the creation of Article I, section 11, and to the case law surrounding it. In this case, we address history and case law together, as our prior cases have explicated that history. Nothing in the reported history of the adoption of the Oregon Constitution sheds any light on the question of how the framers understood the right to be heard. Reports from the proceedings leading to the adoption of the Oregon Constitution are collected in Charles Henry Carey, ed., The Oregon Constitution and Proceedings and Debates of the Constitutional Convention of 1857 (1926). Insofar as the reports reflect, the wording at issue here was not discussed during the public deliberations of the constitutional convention. However, consideration of the historical legal context is illustrative.
In his special concurrence in State v. Douglas, 292 Or 516, 527-38, 641 P2d 561 (1982), Justice Lent provided a detailed history of the evolution of the right to be heard. He observed that the relevant wording of Article I, section 11, was copied from the Indiana Constitution of 1851, which, in turn, was drawn from the constitutions of Pennsylvania, Ohio, Tennessee, and Kentucky. Id. at 527. When those states adopted their constitutions, the right to be heard did not include the right to testify, because courts considered defendants in criminal trials to be incompetent to testify due to bias. Id. at 527-28. As indicated above, the available historical resources describing the adoption of the Oregon Constitution do not indicate that the framers had a view of the “right to be heard” different from the view that generally prevailed in 1859. On the contrary, the Bill of Rights in the Indiana Constitution was described during the Oregon constitutional convention as being “gold refined” and as “asserting] the civil rights of the citizens as ascertained in those 70 years of progress [since the United States Constitution was adopted].” Carey, The Oregon Constitution and Proceedings and Debates of the Constitutional Convention of 1857 at 101-02.
At common law, criminal defendants, like all parties, were disabled from testifying under the reasoning that self-interest was likely to undermine their veracity. Douglas, 292 Or at 528-31 (Lent, J., specially concurring); see also Christopher D. Jaime, Sword and Shield: An Analysis of Criminal Defendants’ Right To Be Heard Under Article I, Section 11, of the Oregon Constitution, 28 Willamette L Rev 127,129 (1991) (so stating). However, under the common-law system, courts allowed defendants to speak in their own defense, including presenting their own version of the facts, although they could not testify under oath. Douglas, 292 Or at 528-30 (Lent, J., specially concurring); Jaime, 28 Willamette L Rev at 129-30. Defendants also could examine and impeach witnesses and make legal arguments. Douglas, 292 Or at 530 (Lent, J., specially concurring); Jaime, 28 Willamette L Rev at 130. In addition, after a jury had returned a verdict of guilty against a defendant, courts would inquire whether the defendant knew of any reason why the court should not pronounce judgment. The courts allowed criminal defendants to make a responsive statement and labeled this process “allocution.” Paul W. Barrett, Allocution, 9 Mo L Rev 115,115 (1944).
That was the state of the law when the early state constitutions, upon which the Oregon Constitution was based, were adopted. Justice Lent opined that it was that common-law right to make unsworn statements that mid-nineteenth century Americans also had in mind when they included in their constitutions a right to be heard. Douglas, 292 Or at 532 (Lent, J., specially concurring). Justice Lent believed, and we agree, that the framers of the Oregon Constitution intended to incorporate into Article I, section 11, the contemporaneous understanding of the right of one criminally accused to be heard “by himself.” Id.
As noted above, that contemporaneous understanding developed in a legal context in which a criminal defendant had no right to serve as a witness for or against oneself. See Revised Statutes of the Territory of Oregon, ch IV, title 1, §§ 3-4 (1854) (although court cannot prevent proffered witness from giving evidence by reason of witness’s interest in action, that protection does not apply to a party to the action); Latshaw v. Territory of Oregon, 1 Or 141, 145-46 (1854) (where several defendants are indicted together, one cannot be a witness for the others). Because the constitutional right to be heard could not have encompassed, at the time of adoption, a right to make a sworn statement, that right must have entailed the right to make an unsworn statement.
The wording of Article I, section 11, and the prevailing understanding in 1859 that criminal defendants were disabled from testifying support the conclusion that the “right to be heard,” at the time of the adoption of the Oregon Constitution, referred to a right to make an unsworn statement.
We next consider the parameters of that right, particularly with respect to the ways in which defendant contends that the trial court erred in constraining his right to be heard. Defendant challenges both procedural and substantive restrictions imposed by the trial court. We first address the procedural restrictions, viz., the trial court’s requirements that defendant read from a prepared statement and submit the statement to the trial court in advance for review.
It is well established that a trial court generally possesses broad discretion to control the proceedings before it. See, e.g., ORS 1.010 (every court has power to regulate proceedings before it and to control, in furtherance of justice, conduct of persons connected with judicial proceedings); OEC 611(1) (court shall exercise reasonable control over presentation of evidence); Still v. Benton, 251 Or 463, 473, 445 P2d 492 (1968) (trial court has discretion and power to control progress of trial, including scope of recross examination); State v. Barnett, 251 Or 234, 237, 445 P2d 124 (1968) (scope of voir dire examination within trial court’s discretionary power to conduct trial efficiently and expeditiously). For example, this court has concluded that trial courts have discretion to control arguments by counsel. R.J. Frank Realty, Inc. v. Heuvel, 284 Or 301, 306, 586 P2d 1123 (1978); see also Biegler v. Kirby, 281 Or 423, 426-27, 574 P2d 1127 (1978) (determination of how to allot argument between two attorneys arguing on behalf of one party is within discretion of trial court); Amick v. Watson, 280 Or 641, 645, 572 P2d 317 (1977) (“[T]he trial court is in the best position to evaluate the effect upon the jury of claimed prejudice because of an attorney’s argument. Usually, these matters are left largely to the discretion of the trial court * * *.”). Similarly, the trial court has the authority to exercise reasonable discretion regarding allocution by a defendant to ensure that the trial is orderly and expeditious. Furthermore, especially in the case of statements by a defendant not made in response to questioning under oath, the trial court has a legitimate concern with assuring that the defendant does not make irrelevant or prejudicial statements. That concern, in fact, was the basis of the decision of the trial court in this case to require defendant to submit a written statement for the court’s review and to read only that statement to the jury.
Atrial court’s authority to exercise reasonable discretion to ensure that the trial is orderly and expeditious does not evaporate when the parties assert their constitutional rights during trial. See, e.g., State v. Langley, 314 Or 247, 257-60, 839 P2d 692 (1992) (rulings that implicated defendant’s rights to counsel and to fair trial reviewed for abuse of discretion); State v. Engeman, 245 Or 209, 211, 420 P2d 389 (1966) (ruling that implicated defendant’s right to fair trial reviewed for abuse of discretion). Rather, a trial court is obliged to accommodate the exercise of all pertinent constitutional and statutory rights by all parties within the context of an orderly and expeditious trial. See State v. Burdge, 295 Or 1, 14, 664 P2d 1076 (1983) (proposition that disqualification of testimony is too grave a sanction for unintentional violation of exclusion order represents “a practical and sensitive accommodation between a criminal defendant’s right to present witnesses in his behalf and the court’s need to control the trial proceedings”); Still, 251 Or at 474 (“Cross-examination is a matter of right, but the bounds of proper cross-examination are necessarily within the sound discretion of the trial judge, and this is particularly so when applied to recross-examination. It must be clear that counsel cannot be permitted to prolong the course of trial by continually returning to matters already considered or as to which he has been given ample opportunity to examine; otherwise, there would be no orderly procedure, and nothing but confusion.”) (citation omitted). Nothing in the text of Article I, section 11, suggests that the framers intended that a defendant’s right to be heard “by himself’ should override the court’s authority and responsibility to conduct the trial as an orderly and expeditious proceeding. The historical circumstances and case law surrounding Article I, section 11, support that reading. See Douglas, 252 Or at 533, 533 n 17 (Lent, J., specially concurring) (from the colonial era on, a defendant’s right to present a defense has been subject to some restrictions, e.g., relevancy).
We conclude that, by requiring defendant to read from a prepared statement and to submit the statement in advance for review, the trial court acted within its discretion to ensure orderly and expeditious proceedings and to avert error. Defendant makes no convincing showing that those procedural restrictions prevented him from exercising fully his constitutional right to be heard. Therefore, as to those restrictions, we find no violation of defendant’s right to be heard under Article I, section 11, of the Oregon Constitution.
Defendant next contends that those restrictions violated his rights under the United States Constitution, first pointing to the Due Process Clause of the Fourteenth Amendment. Defendant submits that, in Green v. United States, 365 US 301, 81 S Ct 653, 5 L Ed 2d 670 (1961), the Supreme Court recognized the "persuasiveness of a defendant speaking in his own words.” He further argues that, under Medina v. California, 505 US 437, 112 S Ct 2572, 120 L Ed 2d 353 (1992), the denial of a defendant’s opportunity to speak in an unedited, extemporaneous fashion " ‘offends some principle of justice so rooted in the traditions and conscience of our people as to be ranked as fundamental,’ ” 505 US at 445 (quoting Patterson v. New York, 432 US 197, 201-02, 97 S Ct 2319, 53 L Ed 2d 281 (1977)), and, therefore, that the trial court’s procedural restrictions violated his right to due process. Defendant further contends that those restrictions violated his rights under the Eighth Amendment because, as explained in Skipper v. South Carolina, 476 US 1, 106 S Ct 1669, 90 L Ed 2d 1 (1986), and Eddings v. Oklahoma, 455 US 104, 102 S Ct 869, 71 L Ed 2d 1 (1982), a trial court must allow a capital jury to consider all relevant mitigating evidence, including aspects of a defendant’s character. According to defendant, his extemporaneous, unedited thoughts are an aspect of his character, and, therefore, requiring him to read a preapproved written statement violated his Eighth Amendment rights.
The state responds that defendant has not shown that he could not have presented the same aspects of his character by taking the stand and testifying. The state contends that, because defendant chose not to pursue that available course, the court should not permit him to argue that he was prevented from presenting all relevant aspects of his character. The state further argues that there is no basis for defendant’s federal constitutional arguments, because the United States Supreme Court has concluded that there is no federal constitutional right to allocution. The state relies for that argument on McGautha v. California, 402 US 183, 91 S Ct 1454, 28 L Ed 2d 711 (1971), and Hill v. United States, 368 US 424, 82 S Ct 468, 7 L Ed 2d 417 (1962).
We have reviewed the cases cited by the state and other cases, and it appears to us that the Supreme Court has not resolved definitively the questions of whether and to what extent the right of allocution may have a basis in the United States Constitution. Even if the United States Constitution requires an opportunity for allocution, however, we hold that that right was not violated in this case.
First, any due process interest served by allocution, as described by the Supreme Court, was satisfied here. The jury had the opportunity to hear defendant’s arguments and evidence in the sound of his own voice. See McGautha, 402 US at 220 (ritual of allocution assures that a defendant will not be sentenced to death in silence). Furthermore, the Supreme Court has explained that constitutional rights are not absolute, but “ ‘may, in appropriate cases, bow to accommodate other legitimate interests in the criminal trial process.’ ” Rock v. Arkansas, 483 US 44, 55, 107 S Ct 2704, 97 L Ed 2d 37 (1987) (quoting Chambers v. Mississippi, 410 US 284, 295, 93 S Ct 1038, 35 L Ed 2d 297 (1973)). See also United States v. Scheffer, 523 US 303, 308, 118 S Ct 1261, 140 L Ed 2d 413 (1998) (“A defendant’s right to present relevant evidence is not unlimited, but rather is subject to reasonable restrictions. * * * [S]tate and federal rulemakers have broad latitude under the Constitution to establish rules excluding evidence from criminal trials. Such rules do not abridge an accused’s right to present a defense so long as they are not arbitrary or disproportionate to the purposes they are designed to serve.”) (internal quotation marks omitted; footnote omitted).
The trial court in this case imposed reasonable procedural limits on defendant’s allocution based on its legitimate concerns about the criminal trial process. The trial court wanted to ensure that defendant’s allocution would not introduce error at the end of a lengthy trial. The restrictions imposed were proportionate to accomplishing the objective of minimizing the risk of error. By requiring defendant to read from a prepared statement and to submit that statement in advance for the court’s review, the trial court did not violate defendant’s due process rights under the Fourteenth Amendment to the United States Constitution.
Second, the court’s action did not infringe any Eighth Amendment interest that allocution implicates. In Skipper, 476 US 1, and Eddings, 455 US 104, the Court held that the exclusion of particular evidence violated the defendants’ right not to have the death penalty imposed without “individualized consideration of mitigating factors” required by the Eighth and Fourteenth Amendments. Eddings, 455 US at 105 (citation omitted). Defendant contends that his “extemporaneous, unedited thoughts” are an aspect of his character such that the trial court was required to allow him to speak in an extemporaneous and unedited fashion. However, defendant does not explain what aspect of his character was excluded by the court’s ruling that: (1) could bear on mitigation; and (2) defendant would have communicated to the jury had the court allowed him to speak free of any restraints. Nor does defendant demonstrate that any such aspect of his character was not communicated adequately by other means. We reject defendant’s Eighth Amendment arguments without further discussion. We conclude that the procedural restrictions imposed on defendant’s allocution did not violate his rights under the Fourteenth or Eighth Amendments to the United States Constitution.
We turn to defendant’s argument that the trial court erred in restricting the substance of his unsworn statement by deleting the last paragraph, which read:
“Besides the task before you in this case, I am currently serving a life sentence with a 30 year minimum from the previous Smith trial. And your Honor, at this time I respectfully appeal to you that should this jury spare my life, I ask that I be sentenced to consecutive life sentences.”
According to defendant, allocution traditionally includes the right to discuss mitigating factors, and, because it is difficult to tell what a jury would consider mitigating, a defendant must be allowed to speak in an “unrestricted fashion.”
The state responds that the trial court correctly struck those two sentences. The state contends that the second stricken sentence contained information that was inappropriate for allocution in two. related ways: First, the state contends that the topic of consecutive sentencing was “a matter over which the jury has no say,” and hence was outside the scope of proper allocution to the jury. Second, the state notes that the second sentence was addressed to the judge, who would control any consecutive sentencing decision, not to the jury, to whom defendant had asked to address his allocution.
When the Oregon Constitution was adopted, the permissible scope of a criminal defendant’s unsworn presentencing statement included legal reasons why the court should not impose a potential sentence, general pleas for leniency, mitigating factors, and requests for pardon. Joseph Chitty, 1 The Criminal Law, 699 (4th ed 1841); Fred Cohen, Sentencing, Probation, and the Rehabilitative Ideal: The View from Mempa v. Rhay, 47 Tex L Rev 1, 9-10 (1968); see also Jaime, 28 Willamette L Rev at 132 (discussing trial in Virginia colony in 1766 in which a defendant exercised his allocution to persuade the court to accept his self-recommended sentence). This court has explained that allocution provides an opportunity for a defendant to convince the sentencing authority to impose no more than the minimum sentence and also allows the defendant to address other matters pertaining to the sentence. Huddleston, 324 Or at 612. As this court stated in DeAngelo:
“The right to speak at a sentencing hearing should logically include the right to make any statements relevant to existing sentencing and parole practices. * * * Oregon’s * * * approach to incarcerating individuals requires the sentencing judge to be fully informed of the defendant’s criminal history, the crime severity, and aggravating and mitigating matters * * *. [A] prime reason for allowing such a right is to provide the defendant an opportunity to plead for mitigation of the sentence. * * * [A] defendant should be able to state any reason why he or she feels sentence should not be pronounced and, in addition to presenting mitigating evidence, be given an opportunity to make any relevant personal comments to the court. This includes, but is not limited to, statements of remorse, apology, chagrin, or plans and hopes for the future. Some defendants might even wish to plead for maximum punishment in an attempt to achieve some purported good.”
306 Or at 95-96 (emphasis added).
Generally, of course, it is the court, not the jury, that resolves all sentencing issues. See, e.g., ORS 137.010(1) (statutes defining offenses impose duty upon court to pass sentence in accordance with ORS chapter 137); ORS 137.120 (court shall impose sentence on persons convicted of felonies); ORS 161.615 (court shall fix the term of imprisonment for misdemeanors); ORS 161.725 (court may extend period of confinement of dangerous offenders). In capital cases, however, the legislature has dictated that both the court and the jury shall play significant roles in sentencing proceedings. See ORS 163.150 (setting out procedures for sentencing in capital cases). In this case, as distinguished from DeAngelo, we address for the first time the parameters of allocution in the context of a capital sentencing proceeding, in which both jury and court play a role. See ORS 163.150(l)(b) (in capital sentencing proceeding, jury must resolve four issues); ORS 163.150(1)00, (2)(b) (depending on how jury resolves those four issues, court must impose a specified sentence).
We agree with the state that, in all cases, including capital cases, whether sentences are to be served consecutively or concurrently is a matter for the court, not for the jury. See ORS 137.123 (establishing criteria under which court may order sentences to run consecutively). This court has held that a trial court properly may refuse to allow a capital defendant’s counsel to argue to the jury that the court could impose consecutive life sentences if the jury returned multiple life sentence verdicts. State v. Williams, 322 Or 620, 628, 912 P2d 364 (1996). This court reasoned that, to allow such an argument,
“would * * * open[ ] a Pandora’s box involving all sorts of evidence and arguments about the possibilities of what the trial court might do, what the Parole Board might do, what the Governor might do, what might happen if defendant escaped, and so forth. A trial court has the authority to prevent the parties from arguing about matters outside the record and to prevent jury confusion and speculation about matters over which the jury has no say.”
Id. at 628. The proposed statement in this case, however, is distinguishable and, as we explain below, when viewed in context, was relevant to issues that Oregon law required the jury, as well as the judge, to decide.
The pertinent sentences in defendant’s statement were preceded by defendant’s acknowledgment that “I have clearly proven to all [and] myself that I don’t belong in the free community and never do.” He then sought to inform the jury that he already was serving a sentence with a 30-year minimum. The state concedes that the subject of the first stricken sentence — that defendant already was serving a 30-year prison term for his conviction in “the Smith trial” — was within the record. One of the state’s witnesses had testified that defendant already was serving a 30-year prison term, and the trial court had alluded to that prison term in the jury instructions, stating that any life sentence in this case “would commence on the completion of the life sentence currently being served by the defendant.” The state’s sole objection to the statement is that for defendant himself to mention his prison term in the Smith case after a prosecution witness already had mentioned it “could only have appeared to be self-serving.”
We reject the state’s argument. By referring to the prison term that he already was serving, defendant was attempting to obtain a less onerous sentence in this case. A primary traditional purpose for allocution is to allow a criminal defendant to plead for leniency or to establish mitigation. The fact that such a purpose is, by definition, “self-serving,” may be accurate descriptively, but the label “self-serving” is not a useful analytical tool. By informing the jury that he already would be in prison for many years, defendant was attempting to communicate a relevant mitigating consideration, viz., the fact that he already was separated from the community for his conduct, and would continue to be for at least 30 yeai;s.
Two characteristics of the second stricken sentence satisfy us that that sentence also was within the proper scope of allocution. First, it invited the judge to impose consecutive life sentences but conditioned that request on the jury’s acceptance of defendant’s plea that it spare his life. Defendant sought to express that statement to the judge, but also in the jury’s presence and for its benefit. The question whether a defendant might qualify for any sentence less than death is one that ORS 163.150(5) requires the jury to decide. By making the statement in question, defendant sought to demonstrate to the jury that a facet of his character — his willingness to accept lifetime imprisonment — should induce them to decline to sentence him to death.
Second, the second stricken sentence invited the trial judge to hold defendant to his word before the jury. By stating his condition before both the jury and the judge, defendant knew that he later would be unable to argue credibly against consecutive life sentences if the jury spared his life.
ORS 163.150(5) assigns unique roles to the jury and the judge, in that it makes both a part of the sentencing process. Thus, while defendant’s second stricken sentence ordinarily would be pertinent to only the traditional sentencer, the judge, it had pertinence here to the jury, because under Oregon’s death-penalty sentencing scheme, the jury is a participant in the sentencing decision. We conclude that both excluded sentences fell within the proper scope of allocution and that the court violated Article I, section 11, of the Oregon Constitution, in striking them from defendant’s proposed unsworn statement.
TESTIMONY OF DR. BLAKELY
During the remand proceeding, defendant called as an expert witness Dr. Blakely, a neuropsychologist. The state objected to Blakely’s testimony on the ground that, because he was not a neurologist, Blakely was not qualified to testify about possible causes of a frontal lobe dysfunction that he had detected in defendant’s brain. The trial court sustained the objection. Defendant asserts that Blakely’s education and experience qualified him to testify about possible causes of defendant’s frontal lobe dysfunction and, accordingly, that the ruling was erroneous. As discussed below, we determine that we must review this assignment of error for errors of law. Applying that standard, we conclude that the court should have allowed Blakely to testify about the possible causes of defendant’s frontal lobe dysfunction.
Blakely testified at length about an electroencephalogram (EEG), or record of brain waves, obtained during tests that Blakely had administered to defendant and about the results of that test. Blakely described the procedure itself and the meaning of different parts of the EEG. He testified that he had analyzed defendant’s EEG and that it exhibited a characteristic pattern indicating frontal lobe dysfunction. Defendant then began to question Blakely about possible causes of frontal lobe dysfunction. The state objected, arguing that, because Blakely was not a neurologist, he was not qualified to render an opinion about possible causes of defendant’s encephalographic profile. The trial court allowed defendant to make an offer of proof as to Blakely’s qualifications. Among other things, Blakely explained that he and other neuropsychologists routinely render opinions interpreting clinical data and arriving at conclusions about possible etiologies to explain the data.
The trial court sustained the state’s objection, stating, “[I]t seems to me that Dr. Blakely is able to testify as to his findings. To indicate a cause, I think is beyond his expertise.” On appeal, defendant argues that Blakely was qualified, under OEC 702, to testify about possible causes of frontal lobe dysfunction and that, accordingly, the trial court erred in sustaining the state’s objection on the basis that Blakely was not so qualified.
We first consider our standard of review. Defendant argues that the ruling in this case should be reviewed for errors of law, relying on several cases in which he contends that this court reviewed similar rulings for errors of law: Mayor v. Dowsett, 240 Or 196, 400 P2d 234 (1965); State v. Stringer, 292 Or 388, 639 P2d 1264 (1982); Barrett v. Coast Range Plywood, 294 Or 641, 661 P2d 926 (1983); Dyer v. R.E. Christiansen Trucking, Inc., 318 Or 391, 868 P2d 1325 (1994). The state argues that the ruling should be reviewed for abuse of discretion, relying on cases in which it contends that this court applied that standard: Myers v. Cessna Aircraft, 275 Or 501, 553 P2d 355 (1976); Stringer, 292 Or 388; State v. Carlson, 311 Or 201, 808 P2d 1002 (1991). Both parties are partially correct, because the determination whether an expert witness is qualified to testify may involve both the application of legal rules and the exercise of a trial court’s discretion. We conclude that we review the particular ruling at issue here for errors of law. We reach that conclusion because an examination of our previous cases shows that, although we have not stated it in so many words, our practice has been to review similar assignments of error for errors of law.
This court previously has explained that, with respect to many evidentiary decisions, trial courts possess broad discretion, as long as they exercise discretion within the range of legally permissible decisions. Put another way, if the application of a legal rule governing the admissibility of evidence allows for several legally correct outcomes, a trial court may exercise discretion to choose among those outcomes.
For example, in Yundt v. D & D Bowl, Inc., 259 Or 247, 486 P2d 553 (1971), the plaintiff assigned error to the trial court’s refusal to allow her expert witness, an architect, to testify. This court examined in depth the proper standard of review, explaining,
“Generally, when appellate courts speak of the discretion of a trial judge, they refer to an exclusive power of free decision not revisable or reviewable by an appellate tribunal in the absence of abuse. * * *
“However, this cannot be the meaning of the term ‘discretion’ when a judge is faced with a decision whether to admit certain testimony of an expert after he has been deemed qualified. At this point, he must apply certain principles of law to his decision and he is not free of revision or review. In the case at bar, it was not singularly a matter of discretion but a question of law calling for an application of a rule of law to a particular set of facts. The true meaning of ‘discretion,’ when applied to the exclusion or admission of testimony from an expert witness, would be the power to make a choice from two or more legally valid solutions if supported by the facts. * * *
* * * *
“The decision of the trial judge is legally valid so long as that decision is based on the proper application of a rule of law to the facts involved.”
Id. at 256-58.
Similarly, in State v. Titus, 328 Or 475, 481, 982 P2d 1133 (1999), this court explained that some evidentiary rulings contain both legal and discretionary determinations:
“[W]e must determine the appropriate standard of review for trial court determinations of relevance under OEC 401 — a question that previously has not been addressed expressly by this court. In considering that question, we note the distinction between the determination of relevance under OEC 401 and the question of admissibility under OEC 403. A decision to exclude evidence under OEC 403 is reserved to the trial court’s discretion. * * * That is so because application of OEC 403 may allow for more than one legally correct outcome. * * * For example, in some cases, the record may support either the admission or exclusion of otherwise admissible evidence under OEC 403, and neither result legally would be incorrect. * * *
“Relevance determinations under OEC 401, by contrast, can yield only one correct answer; evidence either is relevant or it is not. Under OEC 401, if evidence logically is relevant, a trial court has no discretion to label it as irrelevant. * * * Accordingly, we conclude that we must review determinations of relevance for errors of law.”
(Citations omitted.) See also, e.g., State v. Hubbard, 297 Or 789, 794 n 2, 688 P2d 1311 (1984) (term “discretion” should indicate discretion to make decision from among available choices and should not be buzzword for appellate abdication); Stringer, 292 Or at 394 (if answer to question whether expert testimony will assist jury reasonably could be decided either way, then trial court has latitude in admitting evidence).
From the foregoing, we glean several principles. First, in the context of evidentiary rulings, “discretion,” as this court has used that term, refers to the authority of a trial court to choose among several legally correct outcomes. If there is only one legally correct outcome, then “discretion” is an inapplicable concept. It follows that we first must review evidentiary rulings without deference to determine whether proper principles of law were applied correctly. Next, and also without deference, we must determine whether application of those principles leads to only one correct outcome. If there is only one legally correct outcome, and the trial court arrived at that outcome, then it did not err; conversely, if the trial court arrived at a different outcome, then it did err. Only if we determine that application of the correct legal principles leads to more than one correct outcome do we continue to review whether the trial court abused its discretion in choosing an outcome. If the trial court’s decision was within the range of legally correct discretionary choices and produced a permissible, legally correct outcome, then the trial court did not abuse its discretion. Accordingly, appellate review of rulings on the admissibility of evidence may involve the application of several standards of review, depending on the particular ruling and assignment of error at issue.
With those general principles in mind, we turn to the evidentiary ruling at issue, viz., that Blakely was not qualified “by knowledge, skill, experience, training or education” to testify about possible causes of frontal lobe dysfunction. OEC 702. We first determine the proper law to apply to that ruling. We have addressed similar questions in several previous cases.
In State Highway Com. v. Arnold et al, 218 Or 43, 60, 341 P2d 1089 (1959), a condemnation action, the plaintiff. sought to introduce expert witness testimony about the value of the property. Holbrook, the proposed expert witness, testified about his education and experience, which included substantial appraisal experience and, in particular, experience appraising cinder cones, the type of property at issue. Id. at 60-63. The trial court concluded that Holbrook was not qualified as an expert:
“ ‘Oh, I don’t believe this man is qualified to testify as an expert. He knows nothing of the lands of Klamath County or in this vicinity. The fact he sold a piece of property or he appraised a piece of property for the petroleum company down here in the City of Klamath Falls sometime ago, that certainly isn’t qualification. Whatever he knows as to the intricate makeup of these cinders he got from the State of Oregon, it is hearsay evidence as far as he is concerned. He can testify as an ordinary witness but not as an expert.’
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“ ‘I don’t think he has qualified as a mineral expert any place by this testimony. I don’t think he has ever tried to qualify himself as a mineral expert. In this locality he has examined or he has appraised a piece of property for the General Petroleum Company.’ ”
Id. at 63-64.
This court “considered] the test for determining whether a witness qualifies as an expert for the purpose of testifying as to the value of property.” Id. at 64. The court arrived at the following principle to be applied to the determination whether an expert is qualified to testify about appraisal: “[T]here is such ‘generalized knowledge’ [of valuation processes or appraisal methods] and * * * it is to be weighed in determining whether the witness qualifies as an expert.” Id. at 65. The court then reviewed the evidence of Holbrook’s education and experience in light of the particular testimony sought, concluding:
“We are of the opinion that Mr. Holbrook should have been permitted to testify as an expert and that the trial court’s refusal to permit him to do so constitutes reversible error. The trial judge stated that the witness had not ‘qualified as a mineral expert.’ It was not necessary for him to do so. He was called to give testimony with respect to the value of the condemned property. To establish such value it was not necessary that he have scientific knowledge of the minerals which were being taken.”
Id. at 64. Similarly, in Brown et ux v. Eakins, 220 Or 122, 348 P2d 1116 (1960), the court examined the training and experience of the witness in light of the testimony sought. See id. at 124-25 (concluding that “[t]he evidence amply qualifies [the witness] to give an opinion on the cause of fires generally and the cause of this particular fire”).
In Wulff v. Sprouse-Reitz Co., Inc., 262 Or 293, 498 P2d 766 (1972), the defendants contended that the trial court had erred by allowing the plaintiffs’ expert witness, a chemical engineer, to testify about whether the plaintiffs’ electric blanket could have caused a fire. This court stated:
“We gather from the questions asked Dr. Anderson by defendants’ counsel in aid of objecting to his qualifications that at the time of trial they did not feel he was qualified as an expert because he had no specific experience in the manufacture of electric blankets. * * * Defendants’ objection to his qualification was:
“ “Well, I would on the basis of the man’s testimony now object to his answering the question on what caused this blanket or whatever the problem was with the blanket in glowing and so forth, on the ground I don’t think he qualified from the electrical standpoint and I think he so indicated.’ ”
Id. at 304-05. This court reviewed the witness’s education and experience and then stated:
“Even though the witness was a chemical engineer and not an electrical engineer, he had sufficient training, study, background, and experience to qualify as an expert witness. He does not necessarily have to be an expert in the specific item under question in a products liability case. Whether he is the best expert witness on the specific subject or what credibility will be given to the witness’s testimony are matters that go to the weight of his testimony and not to his qualification.”
Id. at 305. This court held that the trial court did not err in allowing the witness to testify as an expert. Id. at 306. See also Dyer, 318 Or at 398-99 (examining expert’s qualification to testify about point of impact); Barrett, 294 Or at 649 (examining experts’ qualification to testify about psychological condition); Myers, 275 Or at 519-21 (observing “[n]o expert is competent to express an opinion on every subject”; examining expert’s qualification to testify about cause of airplane crash); Meyer v. Harvey Aluminum, 263 Or 487, 489, 501 P2d 795 (1972) (“The capacity [to testify] is in every case a relative one, i.e., relative to the topic about which the person is asked to make his statement.”; examining expert’s qualification to testify about cause of damage to fruit) (internal quotation marks omitted).
Those cases demonstrate that this court reviews without deference for errors of law whether a trial court properly applied OEC 702 to decide whether an expert is qualified to give testimony relative to a particular topic, because that determination is a question of the application of law. Once that threshold is satisfied, it is for the factfinder to ascribe the proper weight to an expert’s testimony.
In this case, the basis for the trial court’s ruling was that, because Blakely lacked a medical degree, he was not qualified to testily about the possible causes of defendant’s frontal lobe dysfunction. This court previously has addressed whether a particular degree or field of practice is a necessary prerequisite to testimony about a particular topic.
For example, this court has held that a trial court should not have excluded the testimony of medical doctors about a psychological diagnosis known as functional overlay on the grounds that the witnesses were not psychologists. Barrett, 294 Or at 649. Similarly, in Sandow v. Weyerhaeuser Co., 252 Or 377, 449 P2d 426 (1969), this court held that the trial court erred in refusing to admit testimony from a clinical psychologist that the plaintiffs head injury had caused his emotional disturbance on the ground that the witness was not a medical doctor. As this court observed in Sandow, “a properly-qualified clinical psychologist is competent to testify concerning a person’s mental and emotional condition despite his not having medical training.” Id. at 384. A medical degree is not a necessary predicate to finding an expert witness qualified to testify about medical knowledge, assuming that witness otherwise is qualified to do so. It follows that, in this case, Blakely’s lack of a medical degree similarly should not have been the determinative factor in the decision whether to admit his testimony.
Proper application of OEC 702 requires assessment of the particular qualifications of each witness. We do not assume a disqualification from the lack of a particular educational or professional degree. Accordingly, and similar to our analysis in Sandow, 252 Or at 384, if Blakely was “a properly qualified clinical psychologist,” then it was error not to permit him to testify about the possible causes of defendant’s frontal lobe dysfunction. All that remains is to review Blakely’s testimony about his qualifications to determine if he was in fact a “properly qualified clinical psychologist.”
The record demonstrates that Blakely had special training and knowledge relating to, and thus was qualified to testify about, the possible causes of frontal lobe dysfunction. Blakely testified that he holds a Ph.D. in physiological psychology, has done post-doctoral work in neuroscience, including neuropathology, and has taken advanced workshops including several at Harvard Medical School. He has taught neuroanatomy at the University of California, among other places, and has written a treatise on neuroanatomy. He has worked in the field of electroencephalography for more than 20 years, specializing in electroencephalographic measurement and interpretation, and also performs neuropsychological evaluation. He belongs to several professional organizations, including the International Neuropsychological Association. He has published several papers, including a monograph on the neuropsychological basis of crime, and articles in peer-reviewed journals. Members of his field routinely render interpretive conclusions, and Blakely has rendered opinions and conclusions based on his data in the past, including as part of civil and criminal proceedings. That combination of education and experience demonstrated that Blakely had the requisite knowledge to testify helpfully about the possible causes of defendant’s frontal lobe dysfunction. The trial court erred in concluding otherwise.
CONCLUSION
In summary, we conclude that the trial court erred in refusing to permit the jury to consider the option under ORS 163.150(5)(a) (1993) of sentencing defendant to life in prison without the possibility of parole and to permit defendant to waive an ex post facto objection to the jury’s consideration of that option. That error requires this court to vacate the sentence of death and to remand the case for further proceedings. We also conclude that the trial court erred in striking the last paragraph from the statement that defendant proposed to convey to the jury. Finally, we conclude that the court erred in determining that Blakely was not qualified to testify about the possible causes of the frontal lobe dysfunction presented by defendant’s encephalographic profile.
We have examined defendant’s other assignments of error. Those assignments either are not well taken or raise issues that are unlikely to recur on remand. We decline to address those assignments in greater detail.
The sentence of death is vacated, and the case is remanded to the circuit court for further proceedings.
Judgments of conviction and sentences of death are now subject to automatic review in this court pursuant to ORS 138.012Í 1). The parties do not argue that that statutory change affects the analysis or disposition of this case.
Defendant was charged in a separate indictment for each victim. In each indictment, he was charged with one count of aggravated murder in the course of torturing the victim, ORS 163.095(1 Xe), and aggravated felony murder in the course of kidnapping, ORS 163.095(2)(d); ORS 163.115(lXb)(E) and (F). In one indictment, defendant was charged with a third count of aggravated murder for murder in the course of sexual abuse. ORS 163.095(2Xd); ORS 163.115(lXbXH).
Article I, section 21, of the Oregon Constitution, provides, in part: “No ex-post facto law* * shall ever be passed * ® Article I, section 10, of the United States Constitution provides, in part: “No State shall * * * pass any * * * ex post facto Law ® * For a discussion of the history of the Oregon ex post facto clause, see State v. Cookman, 324 Or 19, 25-31, 920 P2d 1086(1996).
Our rationale obviates the need to address the parties’ arguments about the meaning of the words “trials commencing” in ORS 163.150(4) (1993).
Article I, section 11, of the Oregon Constitution, provides, in part:
“In all criminal prosecutions, the accused shall have the right * * to be heard by himself and counselM”
The Eighth Amendment to the United States Constitution provides:
“Excessive bail shall not be required, nor excessive fines imposed, nor cruel and unusual punishments inflicted.”
The Eighth Amendment is made applicable to the states by the Fourteenth Amendment. Robinson v. California, 370 US 660, 667, 82 S Ct 1417, 8 L Ed 2d 758 (1962). The Fourteenth Amendment to the United States Constitution provides, in part:
“No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any State deprive any person of life, liberty, or property, without due process of lawlU”
The parameters of the right of allocution in Oregon is an open question. In State v. Stevens, 311 Or 119, 124, 806 P2d 92 (1991), this court stated that “Article I, section 11, grants two distinct, not overlapping, rights: the defendant’s right to make a statement and to testify, and the defendant’s right to be represented by counsel.” (Emphasis added.) The issue in that case was whether Article I, section II, entitled defendants to “hybrid representation,” i.e., whether defendants were entitled to perform the same duties as their lawyers. This court held that the right to be heard did not include the right to hybrid representation. Id. Because this court in Stevens was not concerned directly with whether Article I, section 11, encompassed the right to make an unsworn statement, any assertion on that point is dictum.
Nor does State ex rel Huddleston v. Sawyer, 324 Or 597, 932 P2d 1145 (1997), resolve the issue. In that case, this court considered a facial challenge to ORS 137.700, adopted by the people as Measure 11 in 1994. This court concluded, among other things, that Measure 11 did not violate Article I, section 11. Id. at 611-12. Although the court discussed features of the right of allocution, it did not at that time address whether the Oregon Constitution allows a right to be heard that is distinct from the right to take the stand and testify. Similarly, State v. Sally, 41 Or 366, 70 P 396 (1902), is not dispositive. In that case, this court concluded that, if the common-law right of allocution applied to minor felonies — a holding that the court declined to make — then the trial court had complied substantially with that right in that case. Id. at 370-71.
OEC 702 provides:
“If scientific, technical or other specialized knowledge will assist the trier of fact to understand the evidence or to determine a fact in issue, a witness qualified as an expert by knowledge, skill, experience, training or education may testify thereto in the form of an opinion or otherwise.”
To say that a trial court necessarily abuses its discretion if it applies the wrong principle of law or incorrectly applies the correct rule of law leads to the same result. However, the formulation that we have set out is more straightforward and correctly distinguishes that we do not defer to trial courts’ legal determinations. To say that an appellate court should review the legal aspects of an evidentiary ruling for abuse of discretion and that a trial court abuses its discretion if it makes a legal error unnecessarily complicates a simple principle, i.e., that appellate courts review questions of law anew without deference to the decisions of trial courts.
We are not asked, in this case, to review the factual predicates for Blakely’s qualification, e.g., whether he in fact was a licensed psychologist. Trial courts determine such facts as preliminary matters under OEC 104(1), and this court reviews the record to determine whether any evidence supports the trial court’s ruling. See OEC 104(1) Commentary (1981) (“This subsection assigns to the trial judge the responsibility for making certain preliminary determinations regarding qualifications * * *. Is the alleged expert a qualified physician? * * * To the extent that these preliminary inquiries are factual, the judge will necessarily * * * act as a trier of fact.”); John Henry Wigmore, II Evidence in Trials at Common Law § 561 at 756 (Chadbourn rev 1979) (“fTlhe trial court must be left to determine, absolutely and without review, the fact of possession of the required qualification by a particular witness.”) (emphasis omitted); e.g., Highway Com. v. Parker et al, 225 Or 143, 162-63, 357 P2d 548 (1960) (court has gone far in direction of assigning completely to trial court’s discretion ruling on would-be experts’ qualifications).
Although the trial court stated, in making its ruling, that Blakely was unqualified to testify as to “a cause” (emphasis added), we observe that defense counsel reiterated that he had sought Blakely’s testimony only about the range of possible causes for the type of encephalographic profile presented by defendant.
Argued and submitted July 30,
peremptory writ to issue October 3, 2002
STATE OF OREGON, Plaintiff-Adverse Party, v. DAYTON LEROY ROGERS, Defendant-Relator.
(CC 88-00355, 88-00356, 88-00357, 88-00358, 88-00359, 88-00360; SC S49361)
55 P3d 488
Laura Graser, Portland, argued the cause and filed the brief for defendant-relator.
Jennifer S. Lloyd, Assistant Attorney General, Salem, argued the cause for plaintiff-adverse party. With her on the brief were Hardy Myers, Attorney General, and Mary H. Williams, Solicitor General.
DE MUNIZ, J.
[OPINION BY DE MUNIZ, J. type=majority]
DE MUNIZ, J.
In this original mandamus proceeding, relator challenges a trial court order denying his motions to examine certain master jury lists and other jury records. For the reasons that follow, a peremptory writ to issue.
The underlying proceedings concern the penalty phase of a capital murder case in which relator is the defendant. The court previously has recited the relevant procedural history:
“Over a period of time in 1987, police discovered the bodies of seven women in the Molíala Forest. The State Medical Examiner determined that each of the women had been stabbed or cut with a sharp object. When the bodies were discovered, defendant was in police custody as a suspect in the killing of another woman, Smith. Smith had died from multiple stab wounds. Smith and the seven women buried in the Molíala Forest were prostitutes. The facts surrounding the Molíala Forest killings shared other similarities with those surrounding the Smith killing. During the investigation of the Molíala Forest killings, defendant was convicted of aggravated murder for killing Smith, but he was not sentenced to death.
“In May 1989, defendant was found guilty of 13 counts of aggravated murder arising out of six of the Molalla Forest killings. In June 1989, the court sentenced defendant to death. On automatic review, this court vacated the death sentence and remanded the case to the trial court for a new penalty-phase proceeding that would include the so-called ‘fourth question,’ [i.e., whether the death penalty is appropriate for this defendant, considering all aspects of his life and crimes].”
State v. Rogers, 330 Or 282, 284, 4 P3d 1261 (2000) (citations and footnote omitted). After a new penalty-phase proceeding before a jury, the trial court again sentenced relator to death. On automatic review, this court vacated the sentence of death and remanded the case, because the trial court had erred, inter alia, in refusing to permit the jury to consider the option of sentencing relator to life in prison without the possibility of parole. Id. at 285-92.
On remand, pending the penalty-phase hearing, relator moved to obtain the Clackamas County master jury lists and other jury records for the past five years. Shortly after he filed that motion, but before the trial court had ruled, the legislature amended ORS 10.215, ORS 10.275, and ORS 136.005, to provide procedures for criminal defendants to obtain jury lists. In response, relator filed a renewed “motion to produce the jury lists” and a “motion challenging jury panel & to produce source lists, etc.” Relator also tendered an affidavit in support of the motions.
In the motions, relator contended that the process for selecting the jury pool violates the “fair cross-section” of the community requirement of both the state and federal constitutions, asserting, inter alia, that
“* * * cognizable groups are underrepresented therein, contrary to said constitutional provisions as well as the Equal Protection Clause of the Fourteenth Amendment and Article I, § 20 of the Oregon Constitution.”
In support of those assertions, relator contended:
“Specifically, but not exclusively, [relator] believes and submits that non-caucasians, particularly Hispanics, are underrepresented.”
The affidavit that relator’s counsel tendered in support of the motions stated:
“I believe that there have been material departures from the requirements of law regarding the summoning and selection of jurors, in the particulars and for reasons set forth in the foregoing motion, and in other respects, most of which cannot be determined, in my opinion based on review of expert testimony, without the relief requested in the foregoing motion.”
At a subsequent hearing on the motions, relator introduced nine exhibits that included reports, studies and surveys conducted in other counties regarding jury selection and service. We include the state’s description of the exhibits as illustrative of the purpose for which relator offered them.
“The state disagrees with [relator’s] representation in his brief that the exhibits showed that ‘task forces in Multnomah and Marion counties had studied the process and had concluded there was a state-wide problem with the accuracy of the cross-section of the venire.’ Although some of those exhibits showed that certain categories of people were statistically underrepresented on jury venires, they did not show that there was any underrepresentation that rose to the level of a constitutional violation. Moreover, the only study that referred to any sort of state-wide issue was the Oregon Supreme Court Task Force report, which stated only that it ‘believes’ that the results of studies in other counties would be similar to those in Multnomah County. At most, the exhibits tend to show that the names from the master and source lists could be used to discover some of the information (the race, ethnic, and other cognizable characteristics of individual jurors; the reasons they proffered for excusal from jury service) that could be used to support a fair-cross-section challenge.
“Exhibit 102 is an excerpt of the 1994 report of the Oregon Supreme Court Task Force on Racial/Eihnic Issues in the Judicial System. The Task Force report is based on ‘opinions based on actual experience,’ and ‘repeated testimony that jury pools in Oregon do not adequately represent the racial and ethnic diversity of courts’ districts.’ The Task Force stated that those perceptions are ‘confirmed’ by a study of the Multnomah County jury system, and that it ‘believes that similar results would be obtained if the same study were conducted in other areas of the state.’
“Exhibit 103 is an excerpt from the 1993 Multnomah County study. The study was done by Portland State University students and was based on surveys of a scientific sample of jurors and those subpoenaed but who did not serve. The study compared the representation in those two groups to ‘the general population in the community as reflected by the 1990 census.’
“Exhibit 104 is an analysis of juror satisfaction done by the Office of the State Court Administrator in 1999. The study found a disparity between the percentage of Hispanic and Latino residents in the county and those who were summoned for jury service during a 1-year period in 1997 and 1998. However, the study noted, because a significant percentage of Hispanics (52.9% according to the United States Census Bureau in 1996) may not be citizens — and thus ineligible to serve as jurors — ‘it is expected that the percentage of Hispanic jurors summoned * * * will be substantially less than the percentage of Hispanics in Marion County.’
“The remaining exhibits consist primarily of correspondence to trial court administrators and by the State Court Administrator relating to composition of master lists. Exhibits 107 and 108 are reports published by the American Judicature Society regarding improving citizen response to jury summonses and enhancing the jury system. Finally, exhibit 109 is a transcript of testimony in another criminal case by [a witness] relating to studies that could be done based on master and source lists.”
After the hearing, the trial court denied the motions and refused to consider release of the jury records, concluding that relator was required to “establish a material departure from the requirements of law as a preliminary step to obtain the information sought by his motions.” Relator then filed a petition for an alternative writ of mandamus which this court issued.
This matter involves the interplay between ORS 136.005, a statute authorizing either party in a criminal case to challenge the lawfulness of the selection of a jury panel on statutory or constitutional grounds, and ORS 10.215, which establishes the confidentiality of certain jury records, and ORS 10.275, which governs the release of those records in connection with a jury panel selection challenge.
To construe those statutes and the relationship between them, we use the methodology established in PGE v. Bureau of Labor and Industries, 317 Or 606, 859 P2d 1143 (1993). At the first level of analysis, we examine the text and context of each statute, giving words of common usage their plain, natural, and ordinary meaning. Id. at 610-11. If that examination reveals the clear intent of the legislature, then our inquiry is complete. Id. at 611.
We begin with ORS 136.005, which provides:
“(1) The district attorney or the defendant in a criminal action may challenge the jury panel on the ground that there has been a material departure from the requirements of the law governing selection of jurors by filing a motion with the court supported by an affidavit alleging facts that, if true, constitute a material departure from the requirements of the law governing the selection of jurors. The party making the motion shall serve the motion and supporting affidavit on the other party, the trial court administrator and the State Court Administrator.
“(2) A challenge to the panel shall be made before the voir dire examination of the jury.
“(3) If the court determines that there has been a material departure from the requirements of the law governing selection of jurors, the court shall:
“(a) Stay the proceedings pending the selection of a jury panel in conformity with the applicable provisions of law; and
“(b) Grant such other relief as may be appropriate.
“(4) The procedures prescribed by this section are the exclusive means by which a district attorney or defendant may challenge a jury panel.”
Clearly, that statute authorizes a district attorney or a criminal defendant to challenge the jury panel by filing a motion “supported by an affidavit alleging facts that, if true, constitute a material departure from the requirements of the law governing the selection of jurors.” (Emphases added.)
However, ORS 136.005 does not define the words “material” and “departure.” Consistent with the PGE methodology, we give those words of common usage their plain, natural, and ordinary meaning. The word “material” has a number of meanings, which include: “being of real importance or great consequence: SUBSTANTIAL * * *: ESSENTIAL * * *: RELEVANT, PERTINENT.” Webster’s Third Int’l Dictionary 1392 (unabridged ed 1993). “Departure” is defined as “deviation or divergence esp. from a rule, course of action, plan, or purpose <a ~ from official procedure^” Id. at 604. Thus, as a textual matter, “material departure,” under ORS 136.005(1), means that the affidavit must allege facts that, if true, constitute a “deviation” of “great consequence” from constitutional or statutory procedures that govern the selection of jurors.
The state and relator assert, and we agree, that a legally cognizable challenge must be alleged under ORS 136.005(1) to trigger the provisions of ORS 10.275, which govern the release of confidential jury records. That prerequisite does not mean, however, that the party challenging the selection of the jury panel under ORS 136.005(1) must prove, or that the trial court must find, that the facts alleged in the affidavit are true to trigger the provisions of ORS 10.275(1). Instead, initially the trial court must determine only whether the facts alleged in the affidavit, if true, allege a “material departure” from statutory or constitutional requirements governing the selection of jurors.
We turn next to ORS 10.275(1), which provides:
“A person challenging a jury panel under ORS 136.005 or ORCP 57 A who seeks jury records that are confidential under ORS 10.215 must include a request for access to the confidential records in the motion challenging the jury panel. The motion and supporting affidavit must be served on the trial court administrator and the State Court Administrator. The request must:
“(a) Specify the purpose for which the jury records are sought; and
“(b) Identify with particularity the relevant jury records sought to be released including the type and time period of the records.”
That statute requires that a party seeking access to confidential jury records in connection with a motion challenging the selection of the jury panel include a request for access to those records. The request must specify the purpose for which the records are sought and identify with particularity the relevant jury records sought to be released, including the type and time period of the records.
When a legally sufficient challenge has been alleged under ORS 136.005(1), ORS 10.275(2) then authorizes the trial court to order release of jury records that the moving party may use to prove the merits of the asserted challenge. A trial court’s decision to order release of the records must be premised on findings that the records are “likely to produce evidence relevant to the motion” and that the production of the “jury records is not unduly burdensome.” ORS 10.275(2). We now turn to the specific issues of this case.
In this case, the trial court did not apply the provisions of ORS 10.275 because it concluded that ORS 136.005(1) required relator to “establish a material departure from the requirements of the law as a preliminary step to obtain the information sought by his motions.” However, ORS 136.005(1) requires only that relator allege facts that, if true, constitute a material departure from the requirements of law. The trial court impermissibly required relator to prove that his motion would succeed to trigger the statutory provisions governing release of the jury records that may support the motion.
The state argues that, even if the trial court used the wrong standard in deciding relator’s motions, the trial court’s error is of no consequence because the legal sufficiency of relator’s allegations is a question of law, which this court now may decide under the correct statutory standards. In other words, the state contends that relator’s motions, affidavit, and exhibits do not, as a matter of law, allege facts that, if true, constitute a material departure from statutory or constitutional requirements.
In support of that argument, the state asserts that, at most, “the affidavit and motion [s] allege as fact that Hispanics are ‘underrepresented,’ and that the procedures [summoning and excusal of jurors] permit excusal of potential jurors who are ‘not entitled’ to excusal from jury service.” The state argues that, as a matter of law, those facts, if true, would not constitute a violation of relator’s rights under the constitutional provisions on which he relies.
According to the state, the elements of a prima facie case, with regard to the Sixth Amendment fair cross-section requirement, require a criminal defendant to show: (1) that the group alleged to be excluded is a “distinctive” group in the community; (2) that the representation of that group in venires from which juries are selected is not fair and reasonable in relation to the number of such persons in the community; and (3) that the underrepresentation is due to systematic exclusion of the group in the jury-selection process. See Duren v. Missouri, 439 US 357, 358, 99 S Ct 664, 58 L Ed 2d 579 (1979) (identifying factors necessary to prove Sixth Amendment fair cross-section violation). It is the state’s position that, even assuming that people of Hispanic origin are a cognizable group within the meaning of the fair cross-section requirement, relator’s assertion in his motion that Hispanics are “underrepresented” does not identify at what stage of the jury selection process that group is underrepresented and thus does not demonstrate that they are “systematically” excluded from being part of the pool of available jurors. Therefore, according to the state, relator’s assertion that people of Hispanic origin are “underrepresented” in the jury panel does not allege any material departure from the Sixth Amendment fair cross-section requirement.
Relator does not contest the state’s characterization of the elements necessary to demonstrate a violation of the Sixth Amendment fair cross-section requirement. Instead, relator simply asserts that the motions and affidavit, as supplemented by the findings, conclusions, and assertions contained in the various exhibits, are sufficient to allege a Sixth Amendment jury selection challenge under ORS 136.005(1). We agree with relator.
The motions and affidavit filed in this case are of the “bare bones” variety. They assert as fact that “Hispanics are underrepresented in the jury panel.” And, as noted, the record contains a number of exhibits that include studies and reports supporting relator’s assertion that, on a statewide basis, distinctive groups, including Hispanics, are underrepresented in Oregon jury pools.
The question at this stage of the proceedings is whether those assertions are sufficient under ORS 136.005(1) to require the trial court to consider release of the jury records under the requirements specified in ORS 10.275(1). We conclude that relator’s assertion that “Hispanics are underrepresented” in the jury panel, as supplemented by the other exhibits introduced at the hearing, are sufficient, though barely so, to allege a “material departure” from the requirements of law governing selection of jurors.
Because relator has alleged sufficiently a jury selection challenge under ORS 136.005(1), we direct the trial court to vacate its order denying the renewed “motion challenging jury panel & to produce source lists” and “motion to produce jury lists.” The trial court must consider release of the jury records that relator seeks, in accordance with the requirements of ORS 10.275.
Peremptory writ to issue.
Specifically, relator sought the “[cjurrent Clackamas County Master Jury List, and those from 1996 to the present”; “[cjurrent Clackamas County source lists, and those from 1996 to present”; and “[ljists of all Clackamas County jurors who received and returned summons from the 1996 term through the present term.”
Relator’s jury pool challenge addresses “the source list, master list, the term list and the process that brings prospective jurors into the courtroom.”
Relator’s motions cite to Article I, section 11, of the Oregon Constitution as the source of a “fair cross-section” requirement in the Oregon Constitution. Further, relator has not suggested different analyses under the federal and state constitutions. Thus, we assume the “fair cross-section” analyses under both constitutions are the same. See State v. Compton, 333 Or 274, 289, 39 P3d 833 (2002) (so stating).
We express no opinion on the correctness of that procedure or other procedures that the parties used in this case.
ORS 10.215(1) provides, in part:
“Except as specifically provided by law, the State Court Administrator and circuit courts may not disclose source lists obtained from private or public entities, and jury lists containing names selected from a source list, to any other person or public entity.”
ORS 10.275(2) provides:
“The court may order release of the jury records if the court finds that:
“(a) The jury records sought are likely to produce evidence relevant to the motion; and
“(b) Production of the jury records is not unduly burdensome.”
However, under ORS 10.275(3) a trial court that orders release of jury information may circumscribe the use of that information:
“An order under subsection (2) of this section may include, but need not be limited to:
“(a) A requirement that the moving party provide advance payment to the trial court administrator and, if applicable, the State Court Administrator for the reasonable costs of providing copies of the jury records; and
“(b) Restrictions on further disclosure of the jury records including, but not limited to:
“(A) A requirement that the moving party return all originals and copies to the court at the conclusion of the proceeding;
“(B) A requirement that the jury records may be used only for the purpose of supporting the jury panel challenge made in the motion;
“(C) A prohibition against distributing the jury records to a person who is not an agent or representative of the moving party; and
“(D) A prohibition against contacting or attempting to contact the persons whose names appear on the jury records without specific authorization of the court.”
Although we discuss only relator’s Sixth Amendment jury challenge, we note that relator also asserts a Fourteenth Amendment equal protection challenge to the selection of the jury panel. In Castaneda v. Partida, 430 US 482, 494, 97 S Ct 1272, 51L Ed 2d 498 (1977), the Supreme Court summarized the requirements for proving an equal protection violation:
“The first step is to establish that the group is one that is a recognizable, distinct class, singled out for different treatment under the laws, as written or as applied. Next, the degree of underrepresentation must be proved, by comparing the proportion of the group in the total population to the proportion called to serve as grand jurors, over a significant period of time. * * * Finally, * * * a selection procedure that is susceptible of abuse or is not racially neutral supports the presumption of discrimination raised by the statistical showing.”
(Citations omitted.)
Under a Fourteenth Amendment equal protection challenge the exclusion of a cognizable group must be “purposeful.” However, the moving party may prove that requirement by circumstantial evidence establishing a “clear pattern, unexplainable on grounds other than race, [that] emerges from the effect of the state’s action even when the governing legislation appears neutral on its face.” 430 US at 493 (quoting Arlington Heights v. Metropolitan Housing Corp., 429 US 252, 264-65, 97 S Ct 555, 50 L Ed 2d 450 (1977)).
The state points out that the term “Hispanic,” for purposes of the jury challenge that relator has framed, is not easily defined. However, the state has not challenged, at this stage of the proceedings, relator’s assertion that Hispanics are a cognizable group for purposes of a jury selection challenge based on the Sixth and Fourteenth Amendments.
The state appears to concede that “systematic exclusion” under the Sixth Amendment does not mean “intentional exclusion,” but, instead, means exclusion that results from something inherent in the particular jury-selection process utilized.
It appears that relator intended to incorporate the assertions in the motions regarding underrepresentation of Hispanics into the assertions made in the affidavit. We treat the motions and affidavits in that manner for purposes of this opinion.
Having concluded that the trial court’s order is infirm on statutory grounds, we need not reach relator’s argument that he is entitled to the records as a matter of constitutional right. See Crocker and Crocker, 332 Or 42, 46, 22 P3d 759 (2001) (court ordinarily will not decide constitutional questions when adequate subconstitutional basis for decision exists).
We decline to order the release of the jury information at this stage of the proceedings because the provisions of ORS 10.275(2) and (3) contemplate that a trial court will exercise discretion in devising and overseeing the release and use of the jury records.
Argued and submitted January 12,
sentence of death vacated, and case remanded to circuit court for further proceedings October 11, 2012
STATE OF OREGON, Plaintiff - Respondent, v. DAYTON LEROY ROGERS, Defendant - Appellant.
(CC 88-355, 88-356, 88-357, 88-359, 88-360; SC S053466)
288 P3d 544
J. Kevin Hunt, Oregon City, and Richard L. Wolf, Portland, argued the cause and filed the briefs for defendant-appellant.
Timothy A. Sylwester, Sr. Assistant Attorney General, Salem, argued the cause and filed the brief for plaintiff-respondent. With him on the brief were John R. Kroger, Attorney General, Mary H. Williams, Solicitor General, Erika L. Hadlock, Sr. Assistant Attorney General, and Leigh A. Salmon, Assistant Attorney General.
Jeffrey E. Ellis, Oregon Capital Resource Center, Portland, filed a brief for amici curiae Oregon Capital Resource Center; Oregon Criminal Defense Lawyers Association; and American Civil Liberties Union Foundation of Oregon. With him on the brief were Robert S. Raschio, The Dalles, and Kevin Diaz, Portland.
Before De Muniz, Durham, and Walters, Justices, Haselton, Chief Judge, and Brewer, Judge.
WALTERS, J.
Balmer, C. J., and Kistler, Linder, and Landau, JJ., did not participate in the consideration or decision of this case.
[OPINION BY WALTERS, J. type=majority]
WALTERS, J.
This is an automatic and direct review pursuant to ORS 138.012(1) of sentences of death imposed on defendant after a “penalty phase” trial. Defendant raises 33 assignments of error. Five of them merit discussion, specifically, defendant’s claims that (1) the adoption of Article I, section 40, of the Oregon Constitution, which, provides that, in specified circumstances, death shall be the penalty for aggravated murder, violated the “separate vote” requirement of Article XVII, section 1, of the Oregon Constitution; (2) the so-called “third question,” which asks whether defendant’s conduct was “unreasonable in response to the provocation, if any, by the deceased,” is constitutionally infirm; (3) the trial court erred by refusing to admit evidence relevant to the third question or failing to pose the question to the jury; (4) the trial court erred in empanelling an “anonymous” jury; and (5) the trial court erred in allowing the state’s expert to testify about defendant’s consensual homosexual experience as a teenager.
We discuss but reject defendant’s arguments as to three of those assignments of error. We conclude that his position as to the fourth and fifth are well-taken. We conclude that the trial court erred in empanelling an “anonymous” jury without finding, as required by this court’s decision in State v. Sundberg, 349 Or 608, 247 P3d 1213 (2011), that there were strong and particular grounds for believing that the jurors’ identities needed to be protected. Because that error was not harmless, we vacate the sentences of death and remand to the circuit court for a new penalty-phase trial. We also conclude that the trial court erred in denying defendant’s motion to exclude evidence of defendant’s homosexual experiences as a teenager.
1. Defendant’s challenge to Article I, section 40, of the Oregon Constitution
The first claim that we discuss is defendant’s “separate vote” challenge to the validity of Article I, section 40, of the Oregon Constitution, a provision that was adopted by the people in 1984 as “Ballot Measure 6.” Article I, section 40, provides:
“Notwithstanding sections 15 and 16 of this Article, the penalty for aggravated murder as defined by law shall be death upon unanimous affirmative jury findings as provided by law and otherwise shall be life imprisonment with minimum sentence as provided by law.”
Defendant contends that Article I, section 40, was void ab initio because it was adopted in a manner that violated the “separate vote” requirement, set out at Article XVII, section 1, of the Oregon Constitution, for constitutional amendments submitted to the people. Defendant further contends that, because Article I, section 40, was void when adopted, the “entire statutory ‘Oregon Death Penalty Scheme’ (i.e., all substantive and procedural statutes purporting to authorize and implement capital punishment in Oregon ***)” also is void because it is “dependent for constitutionality” on Article I, section 40.
Article XVII, section 1, of the Oregon Constitution provides, in part:
“When two or more amendments shall be submitted *** to the voters of this state at the same election, they shall be so submitted that each amendment shall be voted on separately.”
That “separate vote” requirement is “aimed at ensuring that the voters are able to express their will in one vote as to only one constitutional change.” Armatta v. Kitzhaber, 327 Or 250, 269, 959 P2d 49 (1998).
Armatta is the seminal case on the separate-vote requirement. There, the court compared the wording, historical development, and case law surrounding Article XVII, section 1, with the “single-subject” requirement for initiated measures, set out at Article IV, section l(2)(d), and concluded that the two constitutional provisions were different in a number of respects. Most significantly, the court observed that, whereas the single-subject requirement focuses on the content of a proposed statute or amendment, the separate-vote requirement focuses on the form of submission of an amendment and the potential changes to the existing constitution that the amendment proposes. Id. at 274. Based on that analysis, the court concluded that, when faced with a claim that a proposed constitutional amendment offends Article XVII, section 1, the proper inquiry is “whether, if adopted, the proposal would make two or more changes to the constitution that are substantive and that are not closely related.” Id. at 277.
The analysis in Armatta, and in other separate-vote cases that have followed, establishes two principles that are important to determining whether a ballot measure makes “two or more changes” to the Oregon Constitution that require separate votes. First, if a measure proposes to add new matter to the constitution, the measure proposes at least one constitutional change. Lehman v. Bradbury, 333 Or 231, 242-43, 37 P3d 989 (2002); Armatta, 327 Or at 277-78. Second, if a measure has the effect of modifying an existing constitutional provision, it proposes at least one additional change to the constitution, whether that effect is express or implicit. Meyer v. Bradbury, 341 Or 288, 297, 142 P3d 1031 (2006); Lehman, 333 Or at 243; Armatta, 327 Or at 278-80.
Applying those principles, defendant asserts that Measure 6 proposed to change the Oregon Constitution in 15 separate ways. The state acknowledges three of those changes: (1) the addition of a new constitutional requirement that a person convicted of aggravated murder be sentenced to death or life imprisonment; (2) an amendment to former Article I, section 15 — specifically, an exemption from section 15’s then-existing admonition that criminal penalties must be based on principles of reformation rather than vindictive justice; and (3) an amendment to Article I, section 16, specifically an exemption from section 16’s prohibition on cruel and unusual punishment and requirement of proportionate punishment. We agree that Article I, section 40, proposed at least those three changes, but, before we analyze whether Measure 6 was invalid because it did not permit a separate vote on each of those changes, we turn to the question whether, as defendant contends, that measure also proposed additional changes to the constitution.
We begin with defendant’s assertion that Measure 6 proposed not one, but two, new additions to the constitution. Defendant argues that that is so because the measure declares that (1) the sentence for aggravated murder in certain specified circumstances is death, and (2) the sentence for aggravated murder in other circumstances is life imprisonment. We disagree. The measure provides that, “upon unanimous affirmative jury findings as provided by law,” death is the penalty for aggravated murder. The measure then specifies the penalty that must be imposed when the jury does not make those findings. The latter declaration merely completes the sentencing construct that the former declaration describes; it does not propose to add a separate constitutional provision.
Defendant also contends that Measure 6 proposed a separate amendment to the constitution by “permitting” the death penalty. Although defendant does not explain that contention, we assume that it relates to defendant’s claim in a different assignment of error that, at the time that Measure 6 was considered, the constitution contained an actual, albeit implied, prohibition on the death penalty. Defendant’s theory, in a nutshell, is that the 1964 repeal of two constitutional provisions that authorized the death penalty revived, sub silentio, a preceding (1920) provision that had abolished the death penalty. Defendant suggests that Measure 6 separately proposed to amend that prohibition by declaring that the penalty for aggravated murder was, in certain circumstances, death.
Defendant’s theory depends on our agreement with his idea that a constitutional provision that is repealed by a later constitutional amendment is revived when the amendment is itself repealed. That idea is contrary to this court’s ordinary method of constitutional interpretation, as described in ORS 174.090, and we reject it. It follows that, although Measure 6 proposed the addition of a provision to the constitution that “permitted” the death penalty for aggravated murder, it did not, as defendant seems to suggest, also propose the revival of an earlier prohibition on the death penalty and separately amend it.
Next, defendant contends that by using the introductory phrase “notwithstanding sections 15 and 16 of this Article,” Measure 6 proposed 10 separate constitutional changes. First, defendant argues, the measure effectively proposed to amend the directive in Article I, section 16, that, “[i]n all criminal cases whatever, the jury shall have the right to determine the law, and the facts under the direction of the Court as to the law, and the right of new trial, as in civil case.” Based on a reference to that directive in a dissenting opinion in State v. Boots, 315 Or 572, 592-93, 848 P2d 76, cert den, 510 US 1013 (1993), defendant argues that section 16 gives juries the authority to acquit criminal defendants regardless of the overwhelming nature of the evidence and that, as extended to the death penalty, it allows juries to “acquit” capital defendants of the death penalty, even as against the evidence. This court has not determined that the cited portion of Article I, section 16, operates in the manner that defendant suggests, but even if it does, there is no logical basis for concluding that the “notwithstanding” clause of Measure 6 interferes with that aspect of Article I, section 16. To the contrary, Measure 6 expressly acknowledges the role of the jury and prescribes the death penalty only “upon unanimous jury findings.” Measure 6 does not limit a jury’s authority to make the findings that it deems appropriate or to decide that a defendant should not be sentenced to death.
Defendant calculates nine other proposed changes to sections 15 and 16 as follows. Defendant first points out that sections 15 and 16 express three “penal principles” that he contends are entirely separate from one another— the ban on “vindictive justice” expressed in Article I, section 15, the ban on “cruel and unusual punishment” expressed in Article I, section 16, and the requirement that “penalties [be] proportioned to the offense,” also expressed in Article I, section 16. Second, defendant argues, sections 15 and 16 permit three different types of challenges to the death penalty — challenges to the death penalty per se, challenges to the “procedures for imposing a death sentence,” and challenges to the method and manner of execution. In defendant’s view, the measure precludes a defendant from using all three “penal principles” as a basis for all three types of legal challenges and, in doing so, makes a total of nine changes to the constitution.
Defendant is correct that the text of sections 15 and 16 includes three textually separate provisions — a ban on “vindictive justice,” a ban on “cruel and unusual punishment” and a requirement that “penalties [be] proportioned to the offense.” Defendant also is correct that those separate provisions may serve as the basis for at least three different types of constitutional challenges — facial challenges to legislatively imposed sanctions, challenges to the procedures prescribed or followed in the imposition of sanctions, and challenges to the application of sanctions in particular circumstances. However, defendant is incorrect that the measure prohibits each of the nine challenges that he posits. As the state correctly explains, “the ‘notwithstanding clause’ can relate only to what * * * follows it in the text,” i.e., a declaration that, in certain specified circumstances, death is the sentence for aggravated murder. Matters that are not included within the text that follows the “notwithstanding” clause — for example, issues pertaining to the procedure followed in imposing that sanction, or to the manner and method of execution — are not affected by that clause. Thus, the measure changes sections 15 and 16 by eliminating any constitutional barriers that those sections potentially posed to death as a sanction for aggravated murder; it does not render sections 15 or 16 otherwise inoperable. In other words, the text of the measure appears to preclude challenges to the death penalty as a sanction for aggravated murder; it does not preclude other challenges under Article I, section 15 and 16.
As a result, it is not surprising that defendant does not rely on the text of the measure for his argument that the “notwithstanding” clause has a more expansive effect. Rather, he argues that application of ordinary interpretive principles, including, particularly, the idea that this court’s interpretations of a constitutional text provide context for interpretation of its terms, lead inevitably to the conclusion that Measure 6 precludes any and all constitutional challenges based on the relevant provisions of Article I, sections 15 and 16. Defendant particularly relies on Clark v. Paulus, 295 Or 673, 677, 669 P2d 794 (1983), in which this court broadly described Measure 6 as exempting the death penalty from the constitutional guarantees “embodied” in Article I, sections 15 and 16, and State v. Wagner, 305 Or 115, 139, 752 P2d 1136 (1988), rac’d, and rent’d, 492 US 914 (1989), in which the court, after examining the “notwithstanding” clause, stated in very expansive terms, that, in light of the “notwithstanding” clause of Measure 6, in capital cases the court would not
“consider further any argument *** that depends on contentions grounded in Article I, section 15 and 16, or the Oregon Constitution.”
Defendant’s theory fails. Although it is true that, in some cases, the court has described the clause’s effect in broad terms, a careful examination of those cases, and all other cases in which challenges to a death sentence under Article I, sections 15 or 16, were at play, reveals that the court has never applied Measure 6 to bar all challenges that rely on those sections. In short, the interpretation of Measure 6 upon which defendant’s theory is premised has no textual or contextual support.
Finally, defendant contends that other short phrases in the body of Measure 6 proposed two changes to Article I, section 11, of the Oregon Constitution.* Defendant first notes that Article I, section 11, permits criminal defendants to be found guilty by nonunanimous verdicts, with an exception requiring unanimous verdicts in cases of first degree murder. Defendant suggests that, by requiring “unanimous jury findings,” Measure 6 adds a second exception to Article I, section 11, requiring unanimous verdicts in death penalty cases. However, Article I, section 11, prescribes only the number of jurors who must agree on “verdicts” of “guilty or not guilty,” whereas the “unanimous affirmative jury findings” requirement of Measure 6 applies to the findings necessary to support the imposition of the death penalty after a jury has reached a guilty verdict. Moreover, to the extent that Measure 6 may be interpreted as requiring unanimous jury findings to support a guilty or not guilty verdict, it is consistent with, and does not change, the requirement in Article I, section 11, that “verdicts of guilty of first degree murder [(the historical analog of aggravated murder)] [be] found only by a unanimous verdict.”
Defendant also appears to suggest that the right of criminal defendants to jury trial, also guaranteed by Article I, section 11, is separately affected by Measure 6’s reference to jury findings “as provided by law.” But defendant does not show, and this court has no reason to believe, that that reference in any way alters the jury trial guarantee afforded by Article I, section 11. The measure does not explicitly or implicitly amend Article I, section 11.
We conclude that sections 15 and 16 of Article I include three textually separate provisions — a ban on “vindictive punishment,” a ban on “cruel and unusual punishment” and a requirement that “penalties [be] proportioned to the offense” — that are implicated by Measure 6. We further conclude that, insofar as Measure 6 eliminated the barriers to the imposition of the death penalty posed by each of those provisions, it made three, not two, separate changes to the Oregon Constitution. As the parties acknowledge, the measure also made a fourth constitutional change, namely, creating the new constitutional requirement that persons convicted of aggravated murder be sentenced to death or life imprisonment. Those four changes are all substantive, and the parties do not argue otherwise.
That leaves us to determine whether the four identified changes are “closely-related.” In Lehman v. Bradbury, 333 Or 231, 246, 37 P3d 989 (2002), the court described the “closely-related” inquiry in the following terms:
“First, we examine the relationship among the constitutional provisions that the measure affects, both explicitly and implicitly. If the affected provisions of the existing constitution themselves are not related, then it is likely that changes to those provisions will offend the separate vote requirement ***. [T]he fact that a proposed amendment asks the people, in one vote, substantively to change multiple provisions of the Oregon Constitution that are not themselves related is one indication that the proposed amendment might violate the separate-vote requirement.
“Next, we must consider the constitutional changes themselves. *** If they are closely related, the measure under consideration survives scrutiny under Article XVII, section 1. If they are not, it does not.”
In Swett v. Bradbury, 333 Or 597, 43 P2d 1094 (2002), the court observed that that statement was “descriptive not prescriptive,” and that it was “equally valid analytically to start the inquiry by focusing on the changes themselves.” Id. at 607. For reasons that will become clear, we choose that option.
One thing that should be immediately obvious about Measure 6 is that it contains only one provision and proposes to do only one thing — prescribe the penalty for aggravated murder. All of the other changes that Measure 6 effects are directed at eliminating the potential constitutional barriers to the imposition of that penalty posed by Article I, sections 15 and 16. Said another way, the three changes that the measure makes to Article I, sections 15 and 16, are necessary corollaries to the new provision that permits the imposition of the death penalty.
In that way, Measure 6 is very different from the measures that the court considered in Armatta and in the “separate vote” cases it decided after Armatta. Each of those measures contained more than one provision, and it would have been possible for voters to separately decide (1) which of many procedural rights they wished to grant to victims CArmatta); (2) whether to impose term limits for state and/ or federal offices (.Lehman); (3) whether to require disclosure of campaign contributions and/or impose a requirement that signature gatherers for initiative petitions be registered Oregon voters (Swett); (4) whether to require payment of just compensation for the financial impact of all regulations on private real property and/or except certain kinds of uses from that compensation requirement (League of Oregon Cities v. State of Oregon, 334 Or 645, 56 P3d 892 (2002)); (5) which of a number of different substantive and procedural protections to provide to persons whose property is subject to forfeiture, and how to use forfeiture proceeds (Lincoln Interagency Narcotics Team v. Kitzhaber, 341 Or 496, 145 P3d 151 (2006)); and (6) whether to permit the legislature to prohibit or limit campaign contributions and expenditures and, if so, whether to require more than majority approval for such legislation (Meyer v. Bradbury, 341 Or 288, 142 P3d 1031 (2006)).
Defendant argues that the same is true of Measure 6 — that a voter conceivably could favor one or more of the changes that Measure 6 effects and oppose others. For example, defendant suggests, a voter could support the measure’s directive that the penalty for aggravated murder is death, but oppose excepting that directive from the relevant provisions of Article I, sections 15 or 16. But, in so contending, defendant fails to recognize the limits of the measure’s effect on those sections. As we have explained, Measure 6 ensures that Article I, sections 15 and 16, will not stand as barriers to imposition of the death penalty. It does not otherwise permit that penalty to be imposed in violation of those sections — for example, by methods that are cruel and unusual. Because the measure did not propose to eliminate all or any of the protections afforded by sections 15 and 16, it was not possible for voters to separately decide whether they wished to do so. A voter who favored death as a penalty for aggravated murder could not achieve that objective without also favoring removal of potential barriers to imposition of that penalty, specifically those found in Article I, sections 15 and 16.
So understood, the four separate and substantive changes that Measure 6 made to the Oregon Constitution are “closely related.” It is not simply that those separate constitutional changes are bound by a shared goal or subject matter — a relationship that this court concluded, in Swett, was insufficiently close to pass muster under Article XVII, section 1. 333 Or at 609. Rather, those changes were necessary to imposition of death as a penalty for aggravated murder in this state.
As articulated in the passage from Lehman, 333 Or at 246, quoted above, the next step in the separate vote analysis would require that we consider whether the constitutional provisions that Measure 6 affects are closely related. However, it should be clear from the foregoing discussion that that step is not relevant here. Because the changes that Measure 6 proposed to make to the existing constitution were necessary to give effect to the death penalty scheme that is at the measure’s heart, a separate vote on whether those effects should logically follow was not possible. Therefore, whether the existing constitutional provisions that were affected by the new constitutional provision were themselves closely related is an unnecessary inquiry. Where, as here, a measure contains only one new provision and the changes that the measure makes to existing provisions are only those necessary to effectuate that provision, the only conclusion that we can reach is that those necessary changes are closely related.
We conclude that, although Measure 6 made more than one substantive change to the Oregon Constitution, those changes were closely related. It follows that Measure 6 did not violate the “separate vote” requirement of Article XVII, section 1, and that Article I, section 40, is not, as defendant asserts, “void ab initio” It also follows that defendant’s challenge to the validity of Oregon death penalty scheme, which depends on that assertion, is without merit. That statutory scheme remains in effect.
2. The “third question,” ORS 163.150(l)(b)(C)
The next assignments of error that we consider are those that concern the so-called “third question,” ORS 163.150(l)(b)(C). The “third question” is one of four questions that are submitted to the jury at the close of a penalty-phase trial, the jury’s answers to which determine whether a death sentence will be imposed. The question and the relevant statutory context are as follows:
“Upon the conclusion of the presentation of the evidence, the court shall submit the following issues to the jury:
* * * *
“(C) If raised by the evidence, whether the conduct of the defendant in killing the deceased was unreasonable in response to the provocation, if any, by the deceased * *
ORS 163.150(l)(b)(C).
In. one of his assignments of error, defendant contends that the inclusion of the “third question” in Oregon’s statutory death penalty scheme renders it unconstitutional. In another, defendant contends that the trial court erred in failing to pose the “third question” to the jury. Defendant’s positions on those issues are interwoven and somewhat inconsistent. We discuss the latter issue first to give context to the former.
In his challenge to the rulings of the trial court, defendant claims that the trial court erred by (1) failing to instruct the jury on the third question, and (2) excluding evidence related to the third question. The state contends that neither of those claims were preserved.
We agree with the state. At no point in the proceedings did defendant ask that the court instruct the jury on the third question or attempt to offer evidence relating to provocation. Defendant argues, however, that those kinds of direct actions were not required, and that he adequately preserved his present claims by (1) resisting the state’s repeated requests that he acknowledge having waived his right to request an instruction on the third question or offer provocation evidence; and (2) attempting to explain to the trial court his various reasons, most of which had to do with the meaning and constitutional implications of ORS 163.150(b)(C), for not seeking an instruction on the third question. Neither of those actions was sufficient to preserve this assignment of error.
As far as we are able to tell, the trial court never questioned defendant’s right to offer evidence or request that the court instruct the jury on the “third question.” Although defendant insists that, early in the proceedings, the trial court ruled that no evidence going to the issue of provocation “could” be offered by either party, the record suggests that the trial court was responding to what it perceived to be the parties’ positions on the matter, and would have considered admitting evidence on provocation if defendant at any point had stated that that was his wish. Instead, defendant repeatedly told the court that he did not intend to offer provocation evidence and, although defendant explained that he had well-considered reasons for declining to seek a third question instruction, the fact is that he repeatedly told the court that he was not seeking such an instruction. In light of those statements, defendant’s present claims that the court erred in failing to admit evidence or instruct the jury on the third question are not preserved.
Defendant did, however, preserve his arguments that the “third question” renders the death penalty statutes facially invalid, and we turn to that assignment of error. We begin with defendant’s contention that the “third question” is facially vague, and thereby violates the fair notice requirement of the federal Due Process Clause, the equal privileges and immunities provision of Article I, section 20, of the Oregon Constitution, and the ban on ex post facto laws found in Article I, section 21. Defendant mentions in passing the statutory terms “reasonable” and “provocation” as contributing to that vagueness, but concentrates bis arguments on the phrase “if raised by the evidence.” He contends that that phrase is problematic because it offers no guidance on a myriad of questions: whether, before the trial court poses the third question, evidence must be offered, and, if so, how much, or whether the trial court must pose the third question in any event; when the trial court must make the determination of whether to pose the third question; whether a court’s determination that it will not pose the third question precludes the parties from presenting evidence that is directed at the question; and whether the court is even permitted to decide whether to pose the third question or must leave it to the jury to decide whether the reasonableness of defendant’s conduct has been “raised by the evidence.”
Defendant misapprehends what it means for a statute to be unconstitutionally vague. A statute is unconstitutionally vague if it gives the police, the prosecutor, or the court, uncontrolled or unbridled discretion to punish defendants or to decide what is prohibited, or fails to inform persons subject to it of what conduct on their part will render them liable. State v. Illig-Renn, 341 Or 228, 238-42, 142 P3d 62 (2006). Vagueness concerns typically arise when a statute contains terms that are so indeterminate or standardless that they leave questions about its application to the ad hoc judgments of judge, jury, or police. Id. The uncertainties that defendant identifies in this court do not raise those kinds of concerns. Although defendant raises legitimate questions about the circumstances in which a court must pose the third question, those questions are no different from questions that frequently arise about the meaning of many statutes. The fact that a court may be required to interpret a statute does not necessarily make it unconstitutionally vague. As discussed above, defendant had the opportunity, at trial, to press his interpretation of the death penalty statutes and to ask the court to conduct his penalty-phase trial in accord. If defendant had done so, and if the trial court had disagreed, the appellate process would have provided defendant with a means of assuring that his penalty-phase trial was lawfully conducted. Although questions may remain as to the correct interpretation of the statutory provisions pertaining to the “third question,” those questions do not raise the specter of unbridled discretion that renders a statute constitutionally invalid.
Defendant also contends that, if ORS 163.150(l)(b)(C) permits or requires the trial court to withhold the third question from the jury on the court’s finding that the issue of provocation is not raised by the evidence, it violates the clear import of Article I, section 11, of the Oregon Constitution— the provision that the accused in a capital case may not be tried by the court alone. As we will explain, that argument is too abstract and hypothetical to be a proper subject for this court’s jurisdiction.
Defendant’s argument is based on the contention that a proper interpretation of ORS 163.150(l)(b)(C) requires the court to submit the “third question” to the jury in every case. Under that interpretation, the jury, not the court, must decide whether the issue of provocation is raised by the evidence and, if so, whether defendant’s response was unreasonable. However, as explained above, although defendant informed the trial court that he did not intend to offer evidence of provocation, he never took the position that the court was, nevertheless, required to submit the “third question” to the jury. In fact, defendant told the court that he was not seeking such an instruction. Consequently, the trial court was not called on to interpret the statute and did not give it the interpretation that defendant claims would make it unconstitutional. As the case comes before us, we understand defendant to ask us to decide whether, if the trial court had interpreted the statute to permit the court to withhold the third question from the jury, that interpretation would have been unconstitutional. That is an undertaking in which we will not engage. This court simply does not decide hypothetical or abstract questions. See Strunk v. PERB, 338 Or 145, 154, 108 P3d 1058 (2005) (to be justiciable, controversy must involve present facts as opposed to a dispute which is based on future events or a hypothetical issue”).
Defendant’s contention that the third question violates Article I, section 16, of the Oregon Constitution, and the Eighth and Fourteenth Amendments to the United States Constitution, because it makes the death penalty statutes irrational or “vertically disproportionate,” is similarly problematic. Defendant asserts that if a jury were to answer the “third question” in the negative — that the conduct of a defendant in killing the deceased was not unreasonable in response to the provocation, if any, by the deceased — then it would be irrational and disproportionate for the defendant to be convicted of, and suffer the penalties associated with, aggravated murder. In other words, defendant contends that a negative answer to the third question would constitute a jury finding that the defendant had acted reasonably in response to provocation by the deceased, and would preclude a guilty verdict on the aggravated murder charge. To impose the punishment for aggravated murder in that circumstance would, in defendant’s view, be arbitrary and “vertically disproportionate.”
As is obvious, however, that circumstance did not occur here. Defendant told the court that he did not intend to offer provocation evidence and that he was not seeking an instruction on the “third question.” As a result, the trial court did not submit that question to the jury. Whether a negative answer to that question could, when relevant and submitted, result in disproportionate punishment is an abstract question that we will not answer.
In summary, we reject, in their current posture, each of defendant’s arguments that the statutory provision that sets out the third question is constitutionally invalid.
3. Defendant’s challenge to use of “anonymous jury” procedures
We next address defendant’s claim that the trial court violated various constitutional provisions, including Article I, sections 10 and 11, of the Oregon Constitution, and the Sixth Amendment to the United States Constitution, by empanelling an “anonymous jury” to hear and decide whether defendant should be subjected to the death penalty. We first consider defendant’s contention that the empanelling of an “anonymous jury” denied him a fair trial and an impartial jury, in violation of Article I, section 11, of the Oregon Constitution, under this court’s recent opinion in State v. Sundberg, 349 Or 608, 247 P3d 1213 (2011).
In Sundberg, the trial court denied a criminal defendant’s motion for a new trial, which the defendant sought on the ground that an “anonymous jury selection procedure” that the trial court had employed over the defendant’s objection was an “irregularity” that denied him a fair trial and an impartial jury, in violation of Article I, section 11. In Sundberg, the issue arose out of the trial court’s decision that the parties would not be provided with, and would not be permitted to learn through the voir dire process, the names, addresses or employers of the potential jurors. When the defendant objected to the court’s insistence on an “anonymous jury,” the court overruled the objection, explaining that its decision reflected a circuit-wide response to concerns expressed over the years by jurors about having their names known to the litigants. 349 Or at 610-11. As it turned out, however, a significant number of the jurors who underwent voir dire under the “anonymous jury” procedure in the defendant’s case had also undergone voir dire in a different case on the same day, before a judge that did not employ the “anonymous jury” procedure. After the defendant was found guilty, he moved for a new trial, arguing that, particularly when some of the jurors had been exposed to a raoraanonymous voir dire procedure, the use of the anonymous procedure would have suggested to the jurors that defendant might pose some sort of danger to them and, thus, might have affected the jurors’ ability to be impartial. The trial court denied the motion. Id. at 612-13.
On review, the defendant asked this court to apply the rule that many federal and state courts have applied — that anonymous juries are permitted only when there are strong grounds for believing that the jury needs the protection of anonymity and the trial court takes reasonable precautions to minimize the prejudicial effects on the defendant and to ensure the protection of the defendant’s constitutional rights. The defendant argued that, under that rule, the decision to employ an anonymous jury in his case was error, because there had been no finding of any need to protect jurors and no attempt to minimize possible prejudice to him.
In considering the question the defendant raised, the court first observed that, while trial courts have inherent authority to empanel an anonymous jury, that authority must be exercised in a way that does not violate defendant’s constitutional rights, including his or her right under Article I, section 11, of the Oregon Constitution to “trial by an impartial jury.” The court next determined that anonymity procedures could affect a defendant’s right to an impartial jury in two ways:
“first, by hindering his ability to conduct voir dire and select jurors who are impartial, and second, because it * * * may compromise the jury’s ability to remain impartial by implying that a defendant is dangerous, thus undermining the presumption of innocence.”
Sundberg, 349 Or at 620. With respect to the first effect, the court noted that, although knowledge of names, addresses, and employers is not always necessary to achieve an impartial jury, such knowledge is helpful and in some cases, may be crucial (“If a McCoy is on trial, she will want to know if any of the prospective jurors are Hatfields”). Id. at 621. With respect to the second effect, the court observed that anonymous juries have not been the norm in Oregon and elsewhere and, as such, might suggest dangerousness (and, thus, guilt) to prospective jurors. Id. In light of those potential effects, the court concluded that the approach the defendant had proposed was essentially the correct one, and the court adopted the rule as expressed in one of the federal cases that the defendant had cited:
“[AJnonymous juries are permissible only if the trial court ‘concludes that there is a strong reason to believe that the jury needs protection’ and the court takes ‘reasonable precautions to minimize any prejudicial effects on the defendant and to ensure that his fundamental rights are protected.’”
Id. (quoting U.S v. Paccione, 949 F2d 1183, 1192 (2d Cir 1991), cert den, 505 US 1220 1992)).
The court explained that, to satisfy the first part of that test, the trial court must determine that the circumstances of the particular trial provide sufficient grounds to believe that the jurors need the protection of anonymity. The court noted that some courts had identified a specific group of factors to be considered in making that determination, but it declined to endorse any particular list of factors. The court added, however, that the determination “must be made on the facts of each case — and not on the basis of a generalized desire to protect the anonymity of all jurors in all cases in the interest of juror privacy.” Sundberg, 349 Or at 622. The court went on to explain that, “[i]f grounds exist to empanel an anonymous jury, then the trial court may do so, but it must take reasonable precautions to ensure that defendant’s right to an impartial jury is protected.” Id. Depending on the particular circumstances, such precautions might include permitting extensive voir dire of each juror regarding potentially relevant matters and providing a “plausible and nonprejudicial” explanation to jurors for not disclosing their identities. Id. at 623.
Applying the foregoing analysis to the circumstances that were at issue, the court concluded that, because the trial court had not made any finding that the circumstances of the particular case would support a need to protect the jurors’ identities, the use of an anonymous jury was error. The court further concluded that the error was not harmless, because, in the circumstances, “the unexplained use of an anonymous jury created too great a risk that the jury may have believed that defendant was dangerous, and, therefore, that he was more likely to be guilty.” Id. at 625.
Defendant argues that Sundberg controls the present case. He contends that, as in Sundberg, the trial court erred in deciding to use an anonymous jury when it had not determined, and had no grounds for determining that there were “strong reasons” for believing that the jury needed the protection of anonymity that were particular to defendant’s case. In response, the state argues that the rule from Sundberg is inapplicable for a number of reasons — including that the jury in this case was not an “anonymous jury” within the meaning of Sundberg. The state notes, in that regard, that, although the trial judge in the present case did not permit prospective juror’s names to be used in open court and gave the jurors the option of withholding certain other identifying information requested on juror questionnaires, the court provided the attorneys with a list of the jurors’ names and addresses and told them that, assuming the information became relevant, they could question individual jurors about other information that the jurors may have withheld in responding to their juror questionnaires. Furthermore, the state notes, the trial court told the jurors that they had been given the option of withholding identifying information “for no other reason than to help protect your anonymity from the public and the press.” The state contends that those circumstances stand in stark contrast to the circumstances in Sundberg, where the court prevented even the parties’ attorneys from discovering the jurors’ names, addresses, and employers, and where the trial court gave the jury no explanation of its reason for requiring anonymity. The state adds that, to the extent that defendant wishes to argue that the jury in this case was “anonymous,” as that term is used in the Sundberg analysis, because he, as opposed to his attorney, was precluded from learning the jurors’ identities, he is precluded from doing so by his failure to argue that particular nuance before the trial court.
The facts material to those arguments are as follows. Defendant’s penalty-phase proceeding was scheduled to begin early in 2006, and two orientation meetings for prospective jurors were scheduled for January 17, 2006. During the months that preceded the scheduled meetings, counsel for the parties met a number of times in the chambers of the judge who would be presiding in the trial to discuss what should be included in the juror questionnaire. All eventually agreed to a final questionnaire that included, among other things, questions about the juror’s name, address, and employer, the name and employer of the juror’s spouse, the names, ages, and occupations of juror’s children, the names, ages, and occupations of the juror’s siblings, and whether the juror, or any of the juror’s friends or family members were or had been involved in certain organizations or activities.
On January 13, 2006, at an off-the-record meeting with the parties’ counsel on a different matter, the judge announced that, in filling out the juror questionnaire, prospective jurors would not be required to reveal identifying information about themselves or any other person. It was decided (it is not clear by whom and by what process) that prospective jurors would be given a list of the questions on the juror questionnaire that would be considered optional. As a result of that decision, when juror questionnaires were distributed to the jury venire at the January 17 orientation meetings, they were accompanied by a separate instruction sheet that advised the prospective jurors that they were not required to reveal, in certain designated questions, their names or addresses, the names of their spouses or children or anyone else, or the names of their employers. The trial court also orally advised the prospective jurors that they did not have to answer the designated questions and that the option was being provided to protect jurors’ identities. Although the trial court disputed that it had done so, defense counsel understood that the court had informed the jurors that the questionnaires would be provided only to the lawyers and not to anyone else.
Defendant objected to the court’s decision to thus “anonymize” the jury panel and moved for dismissal of the jury venire and an evidentiary hearing. In the motion, defendant argued that the trial court’s instructions regarding the jury questionnaires might result in a biased jury because it might lead jurors to infer that their anonymity was required because defendant was dangerous. Defendant also argued that permitting jurors to withhold complete information would affect defendant’s ability to conduct voir dire and to intelligently utilize peremptory challenges, implicating his right to an impartial jury. Defendant argued that the only remedy that could cure the resulting prejudice was dismissal and replacement of the jury venire.
The requested evidentiary hearing was held on January 19, 2006. Through testimony from the jury coordinator and presiding judge for the county, defendant established that, some months before, the county’s judges had informally, and not necessarily unanimously, adopted a policy that, in every case, juror names would not be used in open court. The purpose of the policy was to ensure the privacy of jurors.
After defendant elicited that evidence, he reiterated his position that the potential jurors should not have been told that they could omit identifying information from their questionnaires, concentrating his oral arguments on a concern that the anonymous jury procedure could send a message to the jurors that there was reason to fear defendant. The trial court attempted to respond to that concern by instructing the state to submit a draft of a curative instruction to the defense. The court said that defendant would “sign off on it, and then we’ll proceed.” However, defense counsel informed the court that defendant would not sign off on a curative instruction because “our position is that no curative instruction is going to fix the taint.”
In an apparent response to defendant’s contention that the provision of the anonymity option would affect his ability to conduct voir dire effectively, the trial court observed that many of the jurors had chosen to answer all of the questions. The court also advised the parties that, “if, for some reason, any of this information, what is left blank on the questionnaires, becomes somehow relevant during the voir dire process, we’ll deal with that on a case-by-case basis.” Finally, the court pointed out that the names of jurors would be supplied to the attorneys “with the instructions that those were not to be released to any third parties.” The court explained that, by “third parties,” it meant “people who are not employees or agents of the attorneys,” and added that “we should probably have a protective order regarding that.”
Later in the same hearing, the prosecutor presented a draft protective order and the court inquired whether defense counsel was comfortable with it. Counsel responded that “as a substitute measure for getting what I actually want, I don’t have any objection to the form of the order.” The order, which the judge ultimately signed, provided that the jurors’ names and addresses, which would be provided to counsel, “may not be viewed or otherwise used except in connection with representation of a party.” It also specifically provided that the names and addresses “may [not] be provided or viewed in any way by the defendant.”
Some days later, as voir dire was prepared to commence, the parties were provided with the judge’s “opening remarks” to the jury, which included the anticipated curative instruction. It read:
“When you filled out the questionnaire, you were given the option to withhold certain personal identifying information. This option was provided to you for no other reason than to help protect your anonymity from the public and the press, as some of the questions you will be asked may involve personal answers, and this is a public setting. For that reason alone, the parties have been provided with your name but will refer to you only by your juror number. You may be asked to reveal other information that you have omitted as it becomes relevant.”
However, in giving its opening remarks to individual prospective jurors, the court did not always repeat that instruction as drafted. The court separately addressed each juror and, more often than not, told the juror that “the attorneys,” rather than “the parties,” had been provided with the juror’s name. In fact, of the 12 jurors who were selected to hear defendant’s case, only four were told that “the parties” had been provided with their names. The rest heard that “the attorneys” had been provided with that information.
A few days into voir dire, counsel for defendant filed a “renewed objection to the ‘anonymization’ of juror data and identities and demand for dismissal of tainted jurors”— specifically arguing both that the selection procedure implied to the jury that defendant was presently dangerous and that the procedure prevented counsel from eliciting information about potential jurors that was essential to the intelligent and meaningful exercise of peremptory challenges. The court denied the “renewed objections” motion.
As noted, defendant contends that, in taking the described actions, the trial court empanelled an anonymous jury in violation of this court’s decision in Sundberg. The state responds that the anonymity with which Sundberg is concerned is confined to circumstances that exactly mirror the facts of that case — a trial court’s prohibition on the parties and their attorneys learning jurors’ names or identifying information, and that here the court disclosed the names of jurors to defense counsel. Moreover, the state contends, we may not consider the fact that defendant was prohibited from obtaining that information, because defendant did not specifically object to that prohibition below.
In Sundberg, the defendant articulated, as the basis for his objection at trial to the anonymous juror procedure, that the procedure would preclude him from conducting “adequate voir dire.” The defendant did not argue until after the jury returned a guilty verdict (in a post-trial motion), that that procedure was improper because it may have affected the way that the jurors perceived him and, therefore, their impartiality. However, the defendant’s failure to timely state that second concern did not prevent this court from considering, in its analysis, the effect that the trial court’s procedure may have had on jurors’ perception of the defendant.
In this case, defendant voiced the same two concerns about the “anonymous” jury procedure that the defendant in Sundberg voiced and that the court considered in that case. Although defendant focused in oral argument primarily on the effect that the trial court’s selection procedure could have on the jurors’ ability to be impartial and stated his objection that that procedure interfered with his ability to conduct voir dire only in writing and in general terms, we do not think that defendant’s choices confine this court’s analysis. As in Sundberg, we will consider the full effect of the procedure that the trial court imposed in deciding whether it met constitutional requirements.
Important to our willingness to do so is the fact that defendant did alert the trial court in written memoranda that he objected to its jury selection procedure on the basis that that procedure would affect his ability to conduct voir dire. Before the off-the-record meeting on January 13, the parties had agreed on a juror questionnaire that asked jurors to disclose identifying information about themselves, their families and employers. The parties apparently understood, at that point, that juror numbers, instead of names, would be used in open court, but that defense counsel and defendant would have access to the juror questionnaires and all of the information that jurors provided in response, including their names and addresses. Defendant did not object to that procedure. At the January 13 off-the-record meeting, however, the court announced that prospective jurors would be permitted the option of refusing to provide certain of the information requested in the questionnaire. Defense counsel understood the judge as also instructing the jurors at that meeting that their questionnaires would be provided to the attorneys “and not to anyone else,” which defense counsel took to mean “and not to defendant.” Thus, when defense counsel filed the motion for an evidentiary hearing on the court’s decision to “anonymize” the jury, it was counsel’s belief that the procedure that the court was imposing would permit counsel but not defendant to learn the information on the juror questionnaires. In the memorandum that counsel filed in support of that motion, counsel objected that the court’s withholding of complete information would “affect defendant’s ability to conduct voir dire” and to intelligently utilize peremptory challenges. Counsel thereby objected generally to the procedure that she understood the trial court to have imposed and did not limit her objection to any particular aspect of that procedure.
Although the trial court disputed that it had told the jurors that the juror questionnaires would be provided to the attorneys and “not to anyone else,” the trial court knew when it considered that memorandum that the procedure that it was imposing would in fact permit defense counsel to learn the names and addresses of the jurors, but preclude defendant from doing so. At the hearing on the motion, the court explained that defense counsel would be provided with juror names but that those names were not to be released to “third parties.” The court explained that, by third parties, it meant “people who are not employees or agents of the attorneys.” When the trial court entered its protective order, it specifically prohibited counsel from releasing juror names and addresses to defendant. Thus, the trial court adopted a procedure that expressly precluded defendant from learning the names and addresses of jurors, and defendant had objected generally and in writing to that procedure on the basis that it would affect his ability to conduct voir dire.
It is true, as the state observes, that defendant focused much of his oral argument on his contention that, by permitting jurors the option of withholding certain information in responding to the juror questionnaires, the court had tainted their view of defendant and his dangerousness. It also is true that the court and the parties extensively discussed the extent of that taint and the “curative instruction” that the state proposed to address it. But at no time during that discussion did defendant abandon his position, conveyed in his written motion, that the procedure that the court had announced also had the effect of preventing him from obtaining the information that he needed in voir dire. Defendant did not waive that argument when counsel stated that she did not have any objection to the form of the protective order that prohibited counsel from sharing juror names with defendant. Instead, defendant specifically renewed that argument in his written, renewed objection to “anonymization” of juror data. The fact that defendant concentrated, in oral argument, on the effect of the court’s procedures on the jurors’ impartiality does not preclude this court from considering the fact that the trial court entered an order precluding defendant from learning the identity of the jurors who were charged with meting out his penalty. We will therefore include that fact in our analysis of whether the selection procedure that the trial court imposed was sufficiently different from that used in Sundberg that its holding is inapplicable here. We turn to that question now.
As noted, the state argues that, under the procedure the trial court used in this case, the jury was not “anonymous” in the Sundberg sense — first, because the trial court disclosed juror identifying information to counsel, and, second, because the court informed jurors that the procedure was for the sole purpose of protecting their privacy from the public. We disagree. Jurors may be “anonymous” in different ways — from the defendant’s perspective, because the defendant does not know their identifying information, from counsel’s perspective, because counsel does not know their identifying information, and from their own perspective, because they understand that identifying information that they ordinarily would be required to provide may be withheld, and, in any event, will not be provided to the defendant. In Sundberg, the court discussed the concerns that arise when a jury is anonymous from two of those perspectives — the defendant’s perspective and the jurors’ own perspective. The court described the problem that arises when jurors are anonymous from the defendant’s perspective by observing that “ [i] f McCoy is on trial, she will want to know if any of the prospective jurors are Hatfields.” Providing jurors’ names and addresses to counsel may mitigate the potential harm that flows from thus anonymizing the jury, but it cannot completely eliminate it: That is so because, in colloquial terms, the defendant may be the only person who is aware of the dispute between the Hatfields and the McCoys.
In Sundberg, the problem that the court identified when considering anonymity from the jurors’ perspective was that anonymous juries have not been the norm in Oregon, and a deviation from the norm of full disclosure might suggest the defendant’s dangerousness. The court explained that, when jurors learned that they would remain anonymous and were aware that such anonymity deviated from Oregon’s norm of full disclosure, they could conclude that their privacy was being protected because the defendant was dangerous. In this case, the jurors also would have been aware that their ability to remain anonymous was a deviation from the norm. We can infer that awareness from the fact that the jurors received preprinted questionnaires that requested their names and other personal information, but were then told, both orally and in writing, that they had the option of withholding that information.
It is, of course, true that the trial court made an effort to explain that there was a nonprejudicial reason for the deviation — that they were being permitted to withhold information “for no other reason than to protect their anonymity from the public and the press.” However, the court also made a statement that the jurors could understand as an indication that their identities were being protected from defendant. The court told eight of the 12 jurors that it would furnish their names, not to “the parties,” but to “the attorneys.” Under the circumstances, we do not think that the trial court’s explanation for permitting anonymity negated the risk to juror impartiality that the unusual anonymity procedure posed.
We conclude that, in spite of the differences that the state has noted, the procedure that the trial court followed in this case gave rise to the same risks that the court identified in Sundberg. And, because those risks are the same, the rule of Sundberg is applicable. According to that rule, a court may empanel an anonymous jury “only when the trial court finds that the circumstances of a particular case justify that practice and takes steps to mitigate any prejudice to defendant.” Sundberg, 349 Or at 624. It may not empanel an anonymous jury based on “a generalized desire to protect the anonymity of all jurors in all cases in the interest of juror privacy.” Id. at 622.
In the present case, the trial court did not make the required findings. Instead, the court explained that it was merely carrying out a county-wide policy of protecting the identities of jurors — seemingly relying on the very kind of “generalized desire to protect the anonymity of all jurors in all cases” that this court suggested was inadequate in Sundberg. Id. At no point did the trial court state that the circumstances of the particular case provided grounds for believing that the jurors needed the protection of anonymity — even when the scope and bona tides of the “policy” were questioned. In fact, when counsel for the state suggested that the procedures could be explained to the jury in terms of concerns about publicity, the trial court responded emphatically that “[t]he publicity surrounding this case has nothing to do with * * * what I’m doing by way of anonymity.”
The state points out that, by instructing the prospective jurors that the procedures had been used to protect their anonymity “from the public and the press,” the trial court took the very kind of “reasonable precautions to ensure that the defendant’s right to an impartial jury is protected” that the Sundberg rule demands. Id. at 622. But, under Sundberg, the requirement that the trial court take “reasonable precautions” is necessary but secondary: It does not absolve the court from the rule’s primary requirement — that it determine that particular circumstances of the case provide grounds for believing that the jurors need the protection of anonymity. The trial court did not make the required determination. Under Sundberg, the use of an anonymous jury in the absence of such a determination was error.
Still, the error is not a ground for a new penalty-phase trial if it is found to be harmless, i.e., if we determine that there is little likelihood that it affected the verdict. State v. Davis, 336 Or 19, 32, 77 P3d 1111 (2003). The state contends that there is little likelihood that the anonymity procedures used in this case affected the jurors’ decision-making, because the trial court instructed the jurors that they were being used solely to protect the juror’s privacy from the press and public. The state also argues that, even if the anonymity procedures may have conveyed some slight implication of dangerousness, it would have been insignificant in the context of the overwhelming evidence that the jury had heard about defendant’s horrific crimes, and for that reason would have been unlikely to influence the jury’s ultimate decision on the fourth question— whether “there is a probability that [] defendant would commit criminal acts of violence that would constitute a continuing threat to society.” ORS 163.150(l)(b)(B). Finally, the state argues that, because defendant’s lawyers had all of the jurors’ names and were permitted to inquire about the information that the jurors withheld if it became relevant, the anonymity procedures could not have hampered defendant’s ability to conduct effective voir dire.
For the reasons we have already stated, we are not persuaded. The trial court did not decide that this case was different from others nor explain to the jurors why this case was different from others — leaving the jurors to speculate that, perhaps, in this particular case, their disclosure of personal information might expose them to risks that would not be present in other cases. We also cannot ignore the fact that eight of the jurors were instructed that “the attorneys,” as opposed to “the parties,” had been provided with their names. Jurors who heard that the trial court had given their names to “the attorneys” would have assumed, correctly, that only the attorneys — and not defendant— had been provided with their names. That detail could have undermined the trial court’s general explanation of the procedure as protecting jurors’ anonymity from the “press and public,” and focused the jurors on whether this defendant was, perhaps, more dangerous than defendants in other cases. And the concerns about juror impartiality that arise in connection with that kind of speculation by jurors would only be amplified in this context — a penalty-phase proceeding where defendant’s “future dangerousness” was specifically at issue. ORS 163.150(l)(b)(B).
We also are unpersuaded by the state’s suggestion that, in the context of the evidence that the jurors would see and hear about the gruesome murders that defendant had committed, the “small” implication of defendant’s dangerousness that might be associated with the trial court’s anonymity procedures could have little force or effect on the jurors’ ultimate assessment of defendant’s future dangerousness. Evidence of defendant’s obvious past dangerousness to his past victims certainly speaks to defendant’s future dangerousness at some level, but a suggestion that defendant constitutes a present or future danger to jurors and their families cannot be dismissed as comparatively negligible when the question under consideration is “probability that the defendant would commit criminal acts of violence that would constitute a continuing threat to society.”
Finally, we are not convinced that the anonymous jury procedures were harmless with respect to defendant’s ability to use voir dire effectively. As explained, without being able to share juror’s names with a defendant, counsel may not have the information necessary to make effective use of that information. Here, defendant may have been the only person who could connect a name with a potential bias. Moreover, even leaving aside the question of whether defendant’s lawyers’ knowledge of those names is an adequate substitute for defendant’s knowledge, the fact remains that the anonymity procedures that the trial court imposed prevented even the lawyers from knowing other potentially relevant information (i.e., names of spouses, children, employers) about the jurors who eventually were seated. Here, three of the jurors who sat on defendant’s case declined to answer at least one of the other questions that the trial court presented as “optional.”
The state points out that the trial court instructed the lawyers that, in their oral examinations of jurors, they were free to inquire into any matters that a juror had omitted from his or her questionnaire, “should those issues become relevant.” The state contends that, if the lawyers declined to pursue that option, it was their decision, and not the court’s procedure, that prevented them from obtaining the omitted information.
The state’s argument misapprehends the utility of the requested information. The information that the jurors were permitted to withhold — about spouses, children, workplaces, etc. — were included in the questionnaires because the parties and the court had agreed that they should be — with the implication that answers to those questions would be relevant or could suggest important avenues for further relevant inquiry. In other words, the jurors’ answers to the questions were, by agreement, either inherently relevant or were triggers for further relevant questioning. When a juror withheld information that may have alerted a party that further questioning might be fruitful, that questioning could not occur: To return to the example that the court used in Sundberg, without knowing that a juror is named Hatfield, a defendant may not think to ask the juror if she was involved in the dispute with the McCoys and certainly could not demonstrate to the court that the name of the juror had become relevant. Thus, the argument that the state interposes is circular and, ultimately, empty. Without the background information that the answers would have provided, defendant could not meet the trial court’s standard for further inquiry, because he could not know and could not show that any particular line of inquiry was relevant.
In summary, the trial court and the parties designed a voir dire process that was intended to provide the parties with the information that all agreed was necessary to effective voir dire. The trial court then changed that process and precluded defendant from learning the jurors’ names and precluded counsel and defendant from learning other potentially relevant information about potential jurors, including several jurors who were seated on the jury and who heard defendant’s case. The fact that defendant’s lawyers had access to the jurors’ names and addresses and were permitted to inquire into other withheld information “should those issues become relevant,” did not cure the problem that the change in process created.
Under these circumstances, we cannot say that there was little likelihood that the error in employing anonymous jury procedures, without finding strong and particular grounds to do so, affected the verdict. Because the error was not harmless, defendant’s sentence of death must be vacated.
4. Defendant’s past homosexual experience
The last assignment of error that we discuss is defendant’s claim that the trial court erred in permitting a psychiatrist to testify about a homosexual relationship that defendant had had in his youth. In defendant’s previous penalty-phase trials, a psychiatrist testified about that relationship. At the outset of this penalty-phase trial, the defendant asked the court to exclude that same material on grounds of irrelevance and unfair prejudice, citing Beam v. Paskett, 3 F3d 1301 (9th Cir 1993), cert den, 511 US 1060 (1994). In Beam, the court held that evidence of a defendant’s nonviolent, consensual homosexual conduct was not admissible to prove that defendant would be a “continuing threat” to society, when the state had not presented “evidence demonstrating a close link between that history and the defendant’s future dangerousness.” Id. at 1309.
We agree with the court’s statement in Beam that
“when the state seeks to rely on a defendant’s nonviolent, consensual or involuntary sexual conduct as a basis for its decision to impose capital punishment... there is a substantial danger that the sentencer will be swayed by his own moral disapproval of the conduct and will not rationally and impartially consider the relevance of the conduct to the defendant’s future dangerousness. To ensure that the conduct is properly considered, the state must introduce more than the mere facts of the defendant’s sexual history; specifically, the state must, at the least, introduce evidence demonstrating a close link between that history and the defendant’s future dangerousness.”
Id.
In this case, the state failed to introduce evidence demonstrating a link between defendant’s homosexual experience as a teenager and his future dangerousness. The state theorizes that such a link exists because defendant tortured and murdered his female victims to satisfy sexual urges, and that defendant’s youthful homosexual experience shows that those violent sexual urges, and the danger that defendant would act on them, would continue to exist even in a prison setting where defendant only would be interacting with males. But the state’s theory is just that — a theory. The state did not present evidence that sexually obsessive and violent persons in general easily transfer their deviant urges and behaviors from one sex to another— or that defendant, himself, was susceptible to that kind of adjustment. Neither did the state present evidence that, regardless of defendant’s apparent heterosexuality as an adult, his homosexual experience in his youth indicates an underlying flexibility in sexual preferences. In the absence of factual evidence establishing such links, or some more direct link between homosexual activity in his youth and sexual violence toward males as an adult, the relevance under OEC 401 of defendant’s teenage experience to the issue of his future dangerousness is questionable and, under OEC 403, the danger of its unfair prejudice certainly would outweigh any slight relevance that it may have.
We agree with defendant that the trial court erred in allowing the state to present this evidence. We need not, however, decide if this error, alone, requires reversal. Because we already have identified one error in the proceedings below that was sufficient to require reversal and remand, we need not proceed with a harmless error analysis.
The sentence of death is vacated, and the case is remanded to the circuit court for further proceedings.
This was the third such proceeding for defendant. This court vacated the death sentences imposed in penalty-phase proceedings held in 1987 and 1994 and, in both cases, remanded for retrial of the penalty issue. State v. Rogers, 313 Or 356, 836 P2d 1308 (1992), cert den, 507 US 974 (1993) (Rogers I); State v. Rogers, 330 Or 282, 4 P3d 1261 (2000) (Rogers II).
As to defendant’s other assignments of error, we either decline to consider them because they are insufficiently developed, were not preserved in the trial court, are essentially duplications of other assignments of error, or are unlikely to recur in any new penalty-phase trial, or we reject them on their merits.
Included in the category of assignments of error that we decline to consider are defendant’s assignments of error 3 and 5 (claims pertaining to the so-called “third question”), 6 and 7 (claims that the petit jury was drawn from a jury venire that was not representative of the community and that the trial court erred by permitting that issue to be litigated outside of defendant’s presence), 8 (claim that the trial court improperly excused certain prospective jurors), 10 (claim that state improperly used peremptory challenges to exclude women from the jury), 11 and 12 (claims that trial court erred in denying defendant’s motions to excuse two jurors for cause), 15 (claim that state engaged in prosecutorial misconduct by introducing victim impact evidence in spite of agreement not to do so), 17 (claim that defendant was entitled to mistrial when state stated in closing argument that defendant had never expressed remorse, 18 and 19 (claims that prosecution misstated the burden of proof on the so-called “second question” and that the trial court erred in declining to give a curative instruction or grant a mistrial), 25 (claim that trial court erred in allowing the state to make two arguments on the so-called “fourth question,” and 26 (claim that court erred in denying post-verdict motion to examine a certain juror).
Included in the category of assignments of error that we reject on the merits, without further discussion, are assignments of error 13 and 14 (claims that delays occasioned by multiple reversals and retrials are grounds for precluding death penalty in defendant’s case), 16 (claim that trial court erred by admitting photographs of the victims as they appeared when alive), 21 (claim that trial court erred in refusing to give proffered jury instruction pertaining to the meaning of “deliberately”), 22 (claim that issue of defendant’s future dangerousness for purposes of ORS 163.150(l)(b)(B) had been decided in another capital case against defendant and that the state was estopped from relitigating that issue), 23 (claim that there was insufficient evidence to support jury’s determining in guilt phase of trial that defendant had intentionally tortured his victims, 24 (claim that evidence was insufficient to support jury’s determination regarding defendant’s future dangerousness), 27 (claim that legislature’s enactment of the judicially created “fourth question” results in ex post facto violation), 28 (various constitutional challenges relating to “unconscionable delays inherent in any capital punishment scheme”), 29 (claim that trial court erred in refusing to permit appellate counsel to examine contents of box labeled “judge’s notes”), 30 (reasserting various challenges rejected by this court in State v. Wagner, 305 Or 115, 752 P2d 1136 (1988) and other cases, 31 (claim that cumulative effect of all of the foregoing errors had rendered the proceeding fundamentally unfair), and defendant’s pro se claims that the trial court abused its discretion in denying defendant’s motion to have the jury view conditions on death row and erred in excluding defendant from discussions about how to answer the jury’s questions.
Justice Durham concurs in the court’s rejection of assignment of error 30, regarding defendant’s various challenges based on State v. Wagner, for the reasons expressed in his concurring opinion in State v. Guzek, 336 Or 424, 465, 86 P2d 1106 (2004), and cases cited therein.
The group of statutes that defendant dubs “the Oregon Death Penalty Scheme” were adopted contemporaneously with Ballot Measure 6 (1984) in another voter initiative, Ballot Measure 7 (1984). The statutes have since been codified at ORS 163.095, ORS 163.105, ORS 167.150, ORS 138.012, and ORS 137.463 to 137.482.
Article IV, section 1(2), reserves to the people the power to enact laws and adopt amendments to the constitution by initiative petition. The single subject requirement is expressed in paragraph (d): “* * * A proposed law or amendment to the Constitution shall embrace one subject only and matters properly connected therewith.”
At the time that Measure 6 was adopted, Article I, section 15, of the Oregon Constitution provided:
“Laws for the punishment of crime shall be founded on the principles of reformation, and not of vindictive justice.”
Article I, section 15, has been amended since Measure 6 was adopted and no longer requires that criminal punishment he based solely on principles of reformation.
Article I, section 16, of the Oregon Constitution provides:
“Excessive bail shall not be required, nor excessive fines imposed. Cruel and unusual punishments shall not be inflicted, but all penalties shall be proportioned to the offense. In all criminal cases whatever, the jury shall have the right to determine the law, and the facts under the direction of the Court as to the law, and the right of new trial, as in civil cases.”
Since statehood, the people of Oregon have at various times amended the state constitution to provide for or repeal the death penalty. In 1914, the people voted to amend the constitution to abolish the death penalty, but, after only six years, i.e., in 1920, the people adopted a constitutional amendment that (1) repealed the Í914 ban and (2) required the death penalty in first-degree murder cases (except when the jury recommended life imprisonment). A 1964 ballot initiative, Ballot Measure 1, repealed the 1920 amendments. Defendant contends that that 1964 amendment had the effect of affirmatively prohibiting the death penalty and that it becomes effective again if Article I, section 40, is shown to be invalid.
ORS 174.090 provides:
“Whenever a constitutional provision which repeals or suspends in whole or in part a former constitutional provision, either expressly or by implication, is repealed, the former constitutional provision so repealed or suspended thereby shall not be revived unless it expressly is so provided.”
ORS 174.090 appears to codify this court’s rejection of the idea that the “rule of implied revival” extends to the construction of constitutional amendments. See Klamath Falls v. Oregon Liquor Comm., 146 Or 83, 29 P2d 564 (1934) (rejecting, in constitutional context, common law rule of statutory construction that when a repealing statute is itself repealed, the first statute is revived); City of Coos Bay v. Eagles Lodge, 179 Or 83, 89, 170 P2d 389 (1946) (citing and applying rule announced in Klamath Falls).
Defendant also argues that the historical milieu in which Measure 6 was adopted supports that interpretation of the measure. That suggestion is unavailing. The historical events that defendant mentions — the fact that an earlier and nearly identical measure adopted by the people had been invalidated by this court in State v. Quinn, 290 Or 383, 623 P2d 630 (1981), and the fact that Measure 6 followed, by some few years, the United States Supreme Court’s decision in Furman v. Georgia, 408 US 238, 92 S Ct 2726, 33 L Ed 2d 346 (1972) — simply are not relevant to the interpretation that defendant seeks to prove.
Defendant submits a lengthy list of cases that, in his view, show that the court has interpreted the Measure 6’s “notwithstanding” clause as barring any challenges to imposition of the death penalty under Article I, sections 15 and 16. In the first case he cites, Clark, the court merely decided the proper ballot title for Measure 6. In the next cited case, Wagner, the only challenges under Article I, sections 15 and 16 that were before the court were vague challenges to the death penalty per se and to the failure of the statutory death penalty scheme to sufficiently narrow the application of the death penalty However broad the court’s statement about the “notwithstanding” clause’s effect may have been, the holding decided only the claims that defendant actually asserted. The same is true of the third case that defendant cites — State v. Montez, 309 Or 564, 789 P2d 1352 (1990): the court held only that the “notwithstanding” clause precluded section 16 challenges to the death penalty itself and to the death penalty statutes that implement it; the court was not confronted with the full panoply of potential challenges under Article I, section 16.
In fact, in several of the cases that defendant cites—State v. Rogers, 313 Or 356, 836 P2d 1308 (1992); State v. Isom, 313 Or 391, 837 P3d 496 (1992); State v. McDonnell, 313 Or 478, 837 P2d 941 (1992); and State v. Langley, 314 Or 247, 839 P2d 692 (1992)—and at least one that defendant does not cite —State v. Moen, 309 Or 45, 786 P2d 111 (1990)—the court actually considered, and rejected on the merits, certain challenges based on the “cruel and unusual” and “proportionate penalty” provisions of Article I, section 16. Those cases are inconsistent with defendant’s argument that Article I, section 40 bars all such challenges.
Finally, in the other cases that defendant cites —State v. McDonnell, 310 Or 98, 794 P2d 780 (1990), State v. Guzek, 322 Or 245, 906 P2d 272 (1995), and State v. Guzek, 336 Or 424, 86 P3d 1106 (2004), cert den, 544 US 979 (2005) — the court did not consider the defendants’ challenges to their death sentences under Article I, section 16, because it resolved the cases in the defendants’ favor on different grounds.
In short, defendant does not cite a single case in which the court considered, much less decided, whether Measure 6 bars challenges to the “procedures for imposing a death sentence” or the method or manner of carrying out the death penalty — the two types of challenges that, in defendant’s view, are foreclosed.
Article I, section 11, provides a right to trial by jury in criminal prosecutions, and further provides that “in the circuit court ten members of the jury may render a verdict of guilty or not guilty, save and except a verdict of guilty of first degree murder, which shall be found only by a unanimous verdict and not otherwise.”
The measure that was at issue in Armatta, Ballot Measure 40 (1996), was expansive and multi-faceted. It added a new section to Article I of the Oregon Constitution, and the new section was composed of nine separate paragraphs, which prescribed various procedural rights to which crime victims would be entitled in the pre- and post-trial phases of a criminal prosecution or juvenile proceedings, declared how those rights were to be construed in light of other Oregon and federal constitutional provisions, and defined certain relevant terms. Measure 40 did not expressly repeal or modify any existing constitutional provisions; however, it had the effect of modifying six separately enumerated, individual rights (pertaining to search and seizure, unanimous jury verdicts, waiver of jury trial, former jeopardy, self-incrimination, and bail) and the legislature’s constitutional authority to establish juror qualifications in criminal cases. This court held that the ballot measure proposed “two or more changes that [were] substantive and not closely related” and, therefore, that it violated the separate vote requirement. Armatta, 327 Or at 283-84.
In Lincoln Interagency, the court held that a constitutional change that provided “administrative detail” to another constitutional change in the same measure was “closely related” to the latter change, as was a constitutional change that placed a limitation on what another constitutional change otherwise would have allowed. 341 Or at 510-12.
In Meyer, the court rejected an argument that, in Initiative Petition 8 (2006), the creation of legislative authority to enact laws regulating campaign finance, which constituted one constitutional change, was not closely related to the other constitutional change contained in the same measure — the imposition of a three-quarter supermajority requirement on the enactment of such laws. The court reasoned that, insofar as the latter constitutional change was simply a “procedural condition” of the former, the constitutional changes were closely related and did not offend the separate vote requirement. 341 Or at 300-01.
For example, if defendant had concluded that the statute required the trial court to ask the jury to determine whether the “response to provocation” issue was raised by the evidence, defendant could have asked the court to so instruct the jury; if the trial court had refused because it interpreted the statute differently than did defendant, defendant could have raised the court’s refusal, and the underlying dispute about the statute’s meaning, on appeal.
The relevant provision of Article I, section 11, states: “[P]rovided, *** that any accused person in other than capital cases, and with the consent of the trial judge, may elect to waive trial by jury and consent to be tried by the judge of the court alone, such election to be in writing.”
Article I, section 10, provides, in part:
“No court shall be secret, but justice shall be administered, openly and without purchase, completely and without delay, and every man shall have remedy by due course of law for injury done him in his person, property or reputation.”
Article I, section 11, provides, in part:
“In all criminal prosecutions, the accused shall have the right to public trial by an impartial jury * *
The Sixth Amendment to the United States Constitution provides, in part:
“In all criminal prosecutions, the accused shall enjoy the right to a speedy and public trial, by an impartial jury [.]”
This court’s decision in Sundberg significantly post-dates the trial court decisions that are at issue in this case, and even slightly post-dates defendant’s opening brief to this court. From the beginning, however, defendant has argued, in terms that echo the arguments that this court considered in Sundberg, that the “anonymization” procedures employed in voir dire of the jury panel in his case violate the impartial jury requirement of Article I, section 11. After our decision in Sundberg issued, defendant adapted his arguments more specifically to the analysis and holding of that case.
When presented with the curative instruction, defense counsel reiterated her position that the curative instruction was inadequate.
In Sundberg, this court first discussed the required determination regarding grounds for believing that jurors need anonymity, 349 Or at 621-22, and then proceeded to state that “if grounds exist to empanel an anonymous jury, the trial court may do so, but it must take reasonable precautions to ensure that defendant’s right to an impartial jury is protected.” Id. at 622. It is clear from that construction that the determination that “grounds exist” is a necessary condition for a decision to use an anonymous jury procedure.
Two jurors omitted the names of their spouses. One juror omitted all identifying information about her children and the name of her employer.
Under OEC 401, evidence is relevant if it “has any tendency to make the existence of any fact that is of consequence to the determination of the action more probable or less probable than it would be without the evidence.” Under OEC 403, even relevant evidence “may be excluded if its probative value is substantially outweighed by the danger of unfair prejudice, confusion of the issues, or misleading the jury, or by considerations of undue delay or needless presentation of cumulative evidence.”