State v. Guzek

CourtSupreme Court of Oregon
Citation336 Ore. 424,86 P.3d 1106,336 Or. 424
PartiesSTATE of Oregon, Plaintiff on Review, v. Randy Lee GUZEK, Defendant on Review.
Decision Date04 March 2004

86 P.3d 1106
336 Or.
336 Ore. 424

STATE of Oregon, Plaintiff on Review,
Randy Lee GUZEK, Defendant on Review

(CC 87-CR-0373-TM; SC S45272).

Supreme Court of Oregon.

Argued and Submitted January 11, 2002.

Decided March 4, 2004.

86 P.3d 1107
J. Kevin Hunt, Oregon City, argued the cause for defendant on review. With him on the brief was Eric M. Cumfer, Salem

Rolf C. Moan, Assistant Attorney General, Salem, argued the cause for plaintiff on review. With him on the briefs were Hardy Myers, Attorney General, Michael D. Reynolds, Solicitor General, and Robert B. Rocklin and Holly A. Vance, Assistant Attorneys General.

Before CARSON, Chief Justice, and GILLETTE, DURHAM, RIGGS, and De MUNIZ, Justices.1

86 P.3d 1108

This case is before us on automatic and direct review of a judgment that imposed a sentence of death for aggravated murder. Former ORS 163.150(1)(g) (1997), repealed by Or. Laws 1999, ch. 1055, § 1.2 This court previously affirmed defendant's conviction of two counts of aggravated murder, State v. Guzek, 310 Or. 299, 304, 797 P.2d 1031 (1990) (Guzek I), but twice vacated his sentence of death and remanded for further penalty-phase proceedings, as discussed below. On this third review, the state concedes—and we agree—that the trial court erred in failing to instruct the jury on the "true-life" sentencing option and that this court again must vacate the sentence of death. Accordingly, as discussed further below, we vacate the sentence of death and remand to the trial court for further proceedings. In the discussion that follows, we also address issues of law that are likely to arise on retrial, if the state again pursues a death sentence. See, e.g., State v. Smith, 310 Or. 1, 21-22, 791 P.2d 836 (1990) (addressing issues likely to arise on remand despite already having determined that remand was necessary).


The following facts are taken from this court's opinion in Guzek I, 310 Or. at 301-02, 797 P.2d 1031, and from the record from defendant's third penalty-phase proceeding. The victims, Rod and Lois Houser, knew defendant because he had been a high school acquaintance of their niece, who lived with them in rural Deschutes County. Defendant and the niece had dated. After the niece ended their relationship, defendant acted with hostility toward her—in her words, "stalk[ing]" her—prompting Rod Houser to warn defendant to stay away from the Housers' home.

In June 1987, defendant and two associates planned to burglarize a particular residence and kill its occupant. When the three men arrived at that residence, however, they were thwarted by the presence of too many people. One of defendant's associates suggested that they target the Housers' home instead. The three men then went to defendant's home, obtained a rifle and a pistol, and went to the Housers' home with the intention of killing the Housers and stealing their property.

When Rod Houser answered defendant's knock at the door, one of defendant's associates, at defendant's prompting, shot Rod Houser repeatedly, killing him. Defendant then found and shot Lois Houser three times, killing her. The three men then ransacked the home and stole a great deal of personal property. The Housers' niece was not at home at the time.

The Housers' two daughters went to their parents' home two days later, worried because they had not been able to reach their parents by telephone. The daughters discovered their parents' bodies inside the ransacked home. Later, the daughters saw and identified their parents' belongings in defendant's possession. As noted, defendant ultimately was convicted of two counts of aggravated murder and sentenced to death.


Beginning with defendant's first appeal, we describe the procedural history of this case in some detail, because that history provides important background information for much of the discussion that follows. First, we note that, after defendant's first penalty-phase trial, in an unrelated case on remand from the United States Supreme Court, this court concluded that the Eighth Amendment to the United States Constitution3 requires that a penalty-phase jury consider and answer a general mitigation question, to ensure that the jury has the opportunity to give effect to any mitigating evidence relevant "outside or beyond" particular

86 P.3d 1109
statutory issues submitted to the jury. State v. Wagner, 309 Or. 5, 13, 786 P.2d 93, cert. den., 498 U.S. 879, 111 S.Ct. 212, 112 L.Ed.2d 171 (1990) (Wagner II). Because the court in defendant's case had not submitted a general mitigation question to the jury, this court vacated defendant's sentence and remanded the case for a new penalty-phase proceeding. Guzek I, 310 Or. at 305-06, 797 P.2d 1031

The next year, another decision of the United States Supreme Court again affected defendant's penalty-phase proceedings. According to the interpretation of the Eighth Amendment in effect at the time of defendant's crimes, the introduction of "victim-impact" evidence in the penalty phase of a capital trial constituted cruel and unusual punishment under the Eighth Amendment. See Booth v. Maryland, 482 U.S. 496, 509, 107 S.Ct. 2529, 96 L.Ed.2d 440, reh. den., 483 U.S. 1056, 108 S.Ct. 31, 97 L.Ed.2d 820 (1987) (so holding). However, in 1991, the Supreme Court overruled Booth in part, concluding that that decision had "deprive[d] the State of the full moral force of its evidence" in a death-penalty case. Payne v. Tennessee, 501 U.S. 808, 825, 111 S.Ct. 2597, 115 L.Ed.2d 720, reh. den, 501 U.S. 1277, 112 S.Ct. 28, 115 L.Ed.2d 1110 (1991).4 The Supreme Court held in Payne that the Eighth Amendment did not erect a per se bar to victim-impact evidence. Id. at 827, 111 S.Ct. 2597. In the wake of Payne, the state offered, and the trial court admitted, victim-impact evidence against defendant in his second penalty-phase proceeding. Defendant again received a sentence of death.

On review of that second death sentence, defendant argued that the victim-impact evidence that the state had introduced against him was not relevant to any of the questions that the jury was required to consider under the applicable death-penalty statutory scheme, ORS 163.150(1)(b) (1989).5 This court agreed and remanded the case for further proceedings. State v. Guzek, 322 Or. 245, 270, 906 P.2d 272 (1995) (Guzek II).

After a third penalty-phase proceeding, defendant again was sentenced to death. That sentence is before us now.


We turn to the reason for which, as the state concedes, we must vacate defendant's sentence of death.

Defendant's third penalty-phase proceeding began in 1997. The statutes then in effect required the trial court, after this court's remand in Guzek II for further penalty-phase proceedings, to sentence defendant to life imprisonment or, at the state's election, to empanel a jury for a new penalty-phase proceeding to determine if defendant should be sentenced to death, to life imprisonment without the possibility of release or parole ("true life"), or to life imprisonment with the possibility of release or parole ("ordinary life"). Former ORS 163.150(5)(a)(A), (B) (1997), renumbered as ORS 138.012(2)(a)(A), (B) (1999). However, the constitutional protections against ex post facto laws contained in Article I, section 21, of the Oregon Constitution and Article I, section 10, of the United States Constitution6 prohibited retroactive application of the true-life sentencing option to defendant's case, because that option did not exist at the time when defendant committed his crimes. See State v. Wille, 317 Or. 487, 505, 858 P.2d 128 (1993) (retroactive imposition of true-life sentencing option, over the defendant's objection,

86 P.3d 1110
violates state and federal ex post facto prohibitions).

In his third penalty-phase proceeding, defendant moved to have the trial court instruct the jury on the true-life sentencing option. To that end, he expressly waived all ex post facto guarantees that otherwise would have protected him from retroactive application of the true-life option. The trial court denied defendant's motion and did not instruct the jury regarding true life.

After a jury again sentenced defendant to death, this court explained that a criminal defendant may waive protection from ex post facto laws, including the protection against the application of a later-enacted version of the death-penalty statutory scheme. State v. McDonnell, 329 Or. 375, 388, 987 P.2d 486 (1999). This court reiterated those principles in State v. Langley, 331 Or. 430, 439, 16 P.3d 489 (2000). Accordingly, as the state recognizes, the trial court's decision not to instruct the jury regarding the true-life sentencing option was reversible error. We therefore must vacate defendant's sentence of death and remand for further proceedings.


Defendant raises other issues on review. Below, we address some of those issues, which are likely to arise on remand. Specifically, we address (1) the admissibility of "any aggravating evidence" and victim-impact evidence against defendant pursuant to the current versions of ORS 163.150(1)(a) and (c)(B),7 in light of defendant's state and federal protections against ex post facto laws; and (2) the admissibility of certain evidence that the trial court excluded during defendant's third penalty-phase proceeding that defendant again might offer in a subsequent penalty-phase proceeding.

A. Admission of "Any Aggravating Evidence" and Victim-Impact Evidence

At the time of defendant's crimes in 1987, ORS 163.150(1)(a) (1985) required that any evidence introduced in a penalty-phase proceeding must be "relevant to sentence." Former ORS 163.150(2) (1985), renumbered as ORS 163.150(1)(b)(A)-(C)(1987), in turn, set out three statutory questions for the jury's consideration:

"(a) Whether the conduct of the defendant that caused the death of the deceased was committed

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