State v. Isom

• Decision Date: 09 July 1992
• Parties: STATE of Oregon, Respondent, v. James Michael ISOM, Appellant. CC C86-05-32246; SC S36612.
• Court: Oregon Supreme Court

Page 491

837 P.2d 491

313 Or. 391

STATE of Oregon, Respondent, v. James Michael ISOM, Appellant.

CC C86-05-32246; SC S36612.

Supreme Court of Oregon,

In Banc.

Argued and Submitted July 9, 1991.

Decided July 9, 1992.

Stephen J. Williams, Deputy Public Defender, Salem, argued the cause and filed the briefs for appellant. With him on the brief was Sally L. Avera, Public Defender, Salem.

Brenda J. Peterson, Asst. Atty. Gen., Salem, argued the cause and filed the brief for respondent. With her on the brief were Dave Frohnmayer, Atty. Gen., Virginia L. Linder, Sol. Gen., and Jas. Adams, Asst. Atty. Gen., Salem.

GILLETTE, Justice.

This is an automatic and direct review of a judgment of conviction of aggravated murder and sentence of death. Former ORS 163.150(1)(f) (1987) (now ORS 163.150(1)(g)). It is the second time the case has been before us. On the first appeal, we reversed defendant's conviction due to error committed at trial. See State v. Isom, 306 Or. 587, 761 P.2d 524 (1988). After retrial, defendant once again seeks reversal of his conviction for aggravated murder. Alternatively, he asks this court to vacate his sentence of death. We affirm both defendant's conviction of aggravated murder and his sentence of death.

The jury found defendant guilty. We therefore view the evidence in the light most favorable to the state. State v. Rose, 311 Or. 274, 276, 810 P.2d 839 (1991).

On May 13, 1986, defendant, a prisoner in a Washington state prison, was transferred to a work release center in Seattle, Washington. Later that day, defendant was granted a pass to leave the release center, provided that he return by 5 p.m. He did not return as required.

Several days later, defendant rented a room at the Continental Motel in Portland under the name James Austin. He met Barbara Maher in a Portland bar, and they later returned to his motel room. The next morning, defendant checked out of the motel. Later that day, Maher's body, stabbed to death, was discovered in the bathtub of defendant's room.

Defendant was arrested and charged with aggravated murder. ORS 163.095(2)(f). ¹ After a bifurcated trial before a jury, he was found guilty of aggravated murder and sentenced to death.

Defendant's numerous challenges to his conviction and sentence of death fall into three categories, and we address them by category.

CHALLENGES RELATING TO ORS 163.095(2)(f)

1. Change in the law.

Defendant contends that the aggravating factor with which he was charged, ORS 163.095(2)(f), is facially unconstitutional under Article I, sections 16 (criminal penalties must be proportional to the offense), 20 (equal privileges and immunities), and 21 (prohibition against ex post facto laws) of the Oregon Constitution, as well as under the Due Process Clause of the Fourteenth Amendment to the Constitution of the United States and is, in any event, unconstitutional as applied to him in this case. We first address the constitutionality of ORS 163.095(2)(f) as applied to defendant.

Defendant argues that, as a matter of statutory construction, he was entitled to the benefit of a 1989 amendment to the Oregon Criminal Code that made failure to return on a pass from a work release center a misdemeanor, unauthorized departure, rather than the felony of escape. ² Defendant contends that, if his failure to return to the Washington release center did not constitute an escape under current Oregon law, he could not have been convicted of violating ORS 163.095(2)(f).

Defendant claims that he has a right to the benefit of a change in law regarding the punishment that he may receive based on his conviction. ³ Even assuming that defendant would not now be chargeable with aggravated murder under ORS 163.095(2)(f), his argument is not well taken. "The power to declare what punishment may be assessed against those convicted of crime is not a judicial, but a legislative, power, controlled only by the provisions of the Constitution." State v. Smith, 128 Or. 515, 524, 273 P. 323 (1929). Because the power of punishment is legislative, when the legislature changes the punishment for a crime, Oregon courts must apply the sentence that the legislature intended. The reason is found in ORS 161.035(4), the savings clause to Oregon's Criminal Code of 1971, which provides:

"When all or part of a criminal statute is amended or repealed, the criminal statute or part thereof so amended or repealed remains in force for the purpose of authorizing the accusation, prosecution, conviction and punishment of a person who violated the statute or part thereof before the effective date of the amending or repealing Act."

It is clear from ORS 161.035(4) that the legislature intends that Oregon courts sentence criminal defendants under the statutory scheme in force when a particular criminal act was committed. See also State v. Pirkey, 203 Or. 697, 702, 281 P.2d 698 (1955), overruled on different grounds City of Klamath Falls v. Winters, 289 Or. 757, 781, 619 P.2d 217 (1980) ("the statutory provision specifying the punishment for the doing of specific acts constitutes an integral part of the crime itself"); State v. Moore, 192 Or. 39, 45, 233 P.2d 253 (1951) (savings clauses in criminal codes "are declarative of a continuing policy of the state that the repeal of any statute shall not release or extinguish any liability incurred or affect any right accrued"); State v. Twilleager, 18 Or.App. 182, 524 P.2d 567 (1974) (holding that ORS 161.035 required the court not to abate the punishment of the defendant whose sentence was diminished by a later amendment).

To permit defendant to be sentenced under the post-1989 amendment to the criminal code for a criminal act that occurred before the change in the law would have the effect of reducing the prescribed punishment. This would violate the legislative directive of ORS 161.035(4) that a criminal defendant face the same possible sentence that was in effect when the defendant committed the criminal acts for which the defendant is to be punished. ⁴

We also hold that ORS 163.095(2)(f) does not violate any state or federal constitutional provision on which defendant relies. This is not a case of an ex post facto law increasing the punishment of a criminal defendant. See State v. Gallant, 307 Or. 152, 155, 764 P.2d 920 (1988) ("Generally speaking, ex post facto laws punish acts that were legal at the time they occurred, change the punishment for those acts, or deprive the defendant of a defense for those acts."). Here, the trial court applied the statutory scheme in effect at the time defendant committed the murder. We hold, therefore, that ORS 163.095(2)(f) is constitutional, as applied to defendant, under both the state and federal constitutions and that the trial court did not err in refusing to sentence defendant under the post-1989 statutory scheme.

2. The definition of "state" in ORS 163.095(2)(f).

Defendant next contends that ORS 163.095(2)(f) does not apply in his case, because he was an escapee from a Washington work release center and therefore did not escape from a "state" correctional facility, i.e., an Oregon facility, as required by defendant's interpretation of ORS 163.095(2)(f). ⁵ The thrust of defendant's argument is that "[t]he statute could have said, 'from any correctional facility' or 'from a correctional facility of any state, county or municipality.' "

The state responds that ORS 163.095(2)(f) specifically includes defendants on escape from "a state" correctional facility; there is no reference to "this " state which would, the state argues, signify a legislative intent that the subsection apply only to Oregon facilities. "That language, on its face, includes other states, including Washington."

We hold that a "state * * * correctional facility" in ORS 163.095(2)(f) refers to a state correctional facility in any state, not just to one in the State of Oregon. In addition to the statutory language, which is reasonably clear, ⁶ evidence of the legislature's intent as to the scope of "state" may be derived from the context of the statute. ⁷ ORS 163.095(2)(f) is an aggravating factor--a circumstance that elevates intentional murder to aggravated murder and thereby makes a defendant eligible to receive the death penalty. That aggravating factor is the escape status of the defendant. The crucial element of ORS 163.095(2)(f) is whether or not the defendant committed the murder while an escapee. For the purpose of ORS 163.095(2)(f), it is not pertinent in which state the defendant escaped from a correctional institution; there is no suggestion that the legislature thought (or had reason to think) that an escapee from an institution in one state would be either more or less dangerous than would an escapee from an institution in another state. The statute covered escapees like defendant.

3. Vagueness.

Defendant next argues that ORS 163.095(2)(f) is facially unconstitutional because of vagueness--i.e., that the statute invites a standardless and unequal application of the law, in violation of Article I, sections 20 and 21, of the Oregon Constitution, and the Due Process Clause of the Fourteenth Amendment to the United States Constitution. ⁸ In State v. Farrar, 309 Or. 132, 786 P.2d 161 (1990), this court summarized Oregon and federal law applicable to a vagueness challenge to the Oregon aggravated murder statute. In that case, the defendant invoked, among others, the same constitutional provisions that are invoked by defendant here, to challenge ORS 163.095(2)(d) and (2)(e) as unconstitutionally vague. ⁹ This court held that ORS 163.095(2)(d) and (2)(e) were not vague, because "[t]hey do not present an unconstitutional risk under state or federal law of ad hoc or ex post facto application." 309 Or. at 183, 786 P.2d 161.

We hold that ORS 163.095(2)(f) is likewise not unconstitutionally vague under Article I, sections 20 and 21, and the federal due process clause. ¹⁰ ORS 163.095(2)(f) is "sufficiently explicit to inform...