State v. Guzek

• Decision Date: 24 November 1995
• Docket Number: CR-0373-TM
• Parties: STATE of Oregon, Respondent, v. Randy Lee GUZEK, Appellant. CC 87-; SC S38455.
• Court: Oregon Supreme Court

Page 272

906 P.2d 272

322 Or. 245

STATE of Oregon, Respondent, v. Randy Lee GUZEK, Appellant.

CC 87-CR-0373-TM; SC S38455.

Supreme Court of Oregon,

In Banc.

Argued and Submitted March 8, 1995.

Decided Nov. 24, 1995.

J. Kevin Hunt, Oregon City, argued the cause on behalf of appellant. With him on the briefs was John P. Daugirda of Roost & Daugirda, Eugene.

Rives Kistler, Assistant Attorney General, Salem, argued the cause on behalf of respondent. With him on the brief were Theodore R. Kulongoski, Attorney General, Virginia L. Linder, Solicitor General, and Brenda JP Rocklin, Assistant Attorney General, Salem.

UNIS, Justice.

This case is before this court on automatic and direct review of defendant's sentence of death. ORS 163.150(1)(g). For the reasons that follow, we vacate defendant's sentence of death.

In 1988, defendant was convicted of two counts of aggravated murder and sentenced to death. ¹ On automatic and direct review of that judgment, this court affirmed defendant's convictions, but vacated defendant's sentence on the basis of State v. Wagner, 309 Or. 5, 14-20, 786 P.2d 93, cert. den. 498 U.S. 879, 111 S.Ct. 212, 112 L.Ed.2d 171 (1990) (Wagner II ), and remanded the case for a new trial of the penalty phase or, at the election of the district attorney, for a life sentence. State v. Guzek, 310 Or. 299, 305-06, 797 P.2d 1031 (1990) (Guzek I ).

In 1991, a new jury was empaneled for the penalty phase pursuant to ORS 163.150(5)(a)(B) (1989). Before the jury was empaneled for that penalty proceeding, defendant moved to exclude the introduction of all "victim impact evidence" ² by the state, contending, among other things, that it:

"[i]s irrelevant, unduly inflamatory, wholly unrelated to the blameworthiness of this particular defendant, and likely to cause the sentencing decision to turn on irrelevant factors such as the degree to which the victim's family is willing and able to articulate its grief, or the relative worth of the defendant's character;

"[d]iverts a jury from deciding the case on the relevant evidence and data concerning the crime and defendant; [and] "[v]iolates the Eighth and Fourteenth Amendments to the United States Constitution[.]" ³

The trial court granted defendant's motion. At that time, the Supreme Court of the United States had held that the Eighth Amendment to the United States Constitution barred the admission of victim impact evidence in the penalty phase of capital trials. Booth v. Maryland, 482 U.S. 496, 509, 107 S.Ct. 2529, 2536, 96 L.Ed.2d 440, 452 (1987); South Carolina v. Gathers, 490 U.S. 805, 811, 109 S.Ct. 2207, 2211, 104 L.Ed.2d 876, 883 (1989).

After the new sentencing jury was empaneled, but before opening statements were made, the Supreme Court overruled Booth and Gathers in Payne v. Tennessee, 501 U.S. 808, 111 S.Ct. 2597, 115 L.Ed.2d 720 (1991). In Payne, the Supreme Court held that the Eighth Amendment did not erect a per se bar to the admission of victim impact evidence. 501 U.S. at 827, 111 S.Ct. at 2609. Justice O'Connor explained the significance of that holding:

"We do not hold today that victim impact evidence must be admitted, or even that it should be admitted. We hold merely that if a State decides to permit consideration of this evidence, 'the Eighth Amendment erects no per se bar.' " Id. at 831, 111 S.Ct. at 2612 (O'Connor, J., concurring) (citations omitted).

Thus, whether victim impact evidence should be admitted during the penalty phase of a capital case is an issue of state law.

Believing that Oregon state law permitted the admission of victim impact evidence, the state timely notified the trial court and defendant that it intended to offer such evidence in this case.

Defendant renewed his objection to the admission of such evidence, arguing that victim impact evidence was not admissible as a matter of Oregon statutory and constitutional law. The trial court overruled defendant's objection, ruling that such evidence is admissible.

During the penalty phase on remand, the state called some family members of the two victims in this case, a husband and wife, to testify. The brother of the husband described that victim's personal characteristics and background. The couple's daughter also described the personal characteristics and background of both victims and the impact of their deaths on the family.

After the conclusion of evidence and closing statements, the trial court instructed the jury:

"You will be given three questions that you must answer yes or no. The State has the burden of proving that the first two questions must be answered yes. The State must prove that that is the appropriate answer beyond a reasonable doubt. If the affirmative of the two questions is not proven beyond a reasonable doubt, the questions should be answered no. Neither party has any burden of proof as to the third question.

"In answering each of the three questions, each may be answered yes only if all twelve jurors agree that that should be the answer. If one or more jurors do not agree to a yes answer to any question, then that question must be answered no. In answering these questions, your answers must be based upon the evidence in this case and upon the Court's instructions. The three questions that will be submitted to you are as follows.

"First, was the conduct of the [d]efendant that caused the death of the deceased committed deliberately and with the reasonable expectation that the death of the deceased or another would result?

"Two, is there a probability that the [d]efendant would commit criminal acts of violence that would constitute a continuing threat to society? In determining the answer to this question, you shall "The third [question] is, should the [d]efendant receive a death sentence? You answer this question no if you find that there is any aspect of the [d]efendant's character or background or any circumstance of the offense that you believe would justify a sentence less than death.

consider any mitigating circumstances offered in evidence including but not limited to the [d]efendant's age, the extent and severity of the [d]efendant's prior criminal conduct, and the extent of the mental and emotional pressure under which the [d]efendant was acting at the time the offense was committed.

" * * * * *

"In determining the answers to all three of these questions, you may consider any mitigating circumstances that have been offered in evidence. If you do not unanimously answer all three questions yes, then the [d]efendant will be sentenced to life imprisonment without possibility of parole for at least 30 years on each count of aggravated murder so that there will be a separate sentence imposed for each verdict you return which has a no answer in it.

"If you do answer all three questions yes as to the death of either victim, the Court will sentence the [d]efendant to death. The burden of proof is on the State to prove beyond a reasonable doubt the yes answer to each of the first two questions submitted to you, and I just told you that. * * *

"And, as I told you, there is no burden of proof on either party as to the third question. You may consider any aspects of [d]efendant's life in your determination of the third question regarding appropriateness of the death penalty, and any aspect of [d]efendant's life that may be relevant in your determination in the first two questions. Defendant need not prove the existence of a mitigating circumstance. If you reasonably believe that a mitigating circumstance exists, you may consider it as established." (Emphasis added.)

The jury deliberated and answered each of the three questions in the affirmative. The trial court scheduled sentencing for five days later and at that time pronounced defendant's death sentence.

Defendant raises numerous assignments of error. Defendant first assigns as error the decision of the trial court to admit the victim impact evidence. Defendant makes both statutory and constitutional arguments that the victim impact evidence was not admissible. We begin with defendant's subconstitutional arguments. See State v. Stevens, 319 Or. 573, 579, 879 P.2d 162 (1994) (Stevens II ) (court decides subconstitutional issues before addressing constitutional issues).

Defendant argues that the victim impact evidence was not admissible because it was not relevant to any of the substantive issues submitted by the court to the jury pursuant to ORS 163.150(1)(b) (1989). We agree.

ORS 163.150(1)(a) (1989), which was the statutory scheme in effect at the time, provided that "evidence may be presented as to any matter that the court deems relevant to sentence." The standard of relevance in OEC 401 applies in penalty phase proceedings. Stevens II, 319 Or. at 580, 879 P.2d 162. Under OEC 401, " '[r]elevant evidence' means evidence having 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." "Evidence which is not relevant is not admissible." OEC 402.

The function of the doctrine of relevancy is to require that there be some rational relationship between the item of evidence offered by a litigant and the substantive issues properly provable in the case. 22 Wright & Graham, Federal Practice & Procedure: Evidence § 5164, at 37 (1978). Relevancy under OEC 401 is a relational concept that carries meaning only in context. See Christopher B. Mueller & Laird C. Kirkpatrick, Evidence § 4.1, at 183 (1995) (stating principle). Stated differently, "[r]elevancy is not an inherent characteristic of any item of evidence but exists only as a relation between an item of evidence and a matter properly provable in the case." OEC 401 Commentary, reprinted in Laird C. Kirkpatrick, Oregon Evidence at 104 (2d ed. 1989).

Relevance under OEC 401 merges two traditional concepts--relevance and materiality--into a single definition, using the term "relevant" to embrace the two. OEC...