State v. Langley

• Citation: 331 Or. 430,16 P.3d 489
• Parties: STATE of Oregon, Respondent, v. Robert Paul LANGLEY, Jr., Appellant.
• Decision Date: 29 December 2000
• Court: Supreme Court of Oregon

16 P.3d 489
331 Or. 430

STATE of Oregon, Respondent,
v.
Robert Paul LANGLEY, Jr., Appellant

(CC 88-C-21624; SC S41885).

Supreme Court of Oregon.

Argued and Submitted October 13, 1999.

Decided December 29, 2000.

16 P.3d 490

Jesse Wm. Barton, Deputy Public Defender, Salem, argued the cause and filed the supplemental brief and additional authorities for appellant. With him on the supplemental brief was David E. Groom, Public Defender. On the brief were Sally L. Avera, Public Defender, and Diane L. Alessi, Chief Deputy Public Defender

Robert P. Langley, Jr., filed a supplemental brief pro se.

Robert B. Rocklin, Assistant Attorney General, Salem, argued the cause and filed the briefs and additional authorities for respondent. With him on the brief, supplemental brief, and additional authorities, were Hardy Myers, Attorney General, and Michael D. Reynolds, Solicitor General. Also on the brief was Jennifer S. Lloyd, Assistant Attorney General.

Before CARSON, Chief Justice, and GILLETTE, VAN HOOMISSEN, DURHAM, LEESON, and RIGGS, Justices.¹

CARSON, C.J.

This is an automatic and direct review of a judgment that imposed a sentence of death for aggravated murder. Former ORS 163.150(1)(g) (1993), renumbered as ORS 138.012(1) (1999). See Or Laws 1999, ch 1055, § 1 (repealing former ORS 163.150(1)(g) (1993)).² This is the second time that the case has been before this court. On the first direct review, this court affirmed all but one of defendant's convictions, vacated the sentence of death, and remanded for resentencing due to an error committed at trial. State v. Langley, 314 Or. 247, 839 P.2d 692 (1992), on recons. 318 Or. 28, 861 P.2d 1012 (1993) (Langley I). For the reasons that follow, we vacate defendant's second sentence of death and remand this case to the trial court for further penalty-phase proceedings.

16 P.3d 491

BACKGROUND

This case stems from defendant's conviction on 16 counts of aggravated murder for the death of Gray. The facts regarding the crime are set out in Langley I, 314 Or. at 249-52, 839 P.2d 692. At the time when the proceeding in Langley I was underway, defendant already had been convicted and sentenced to death for the murder of Rockenbrant. This court subsequently vacated defendant's death sentence in the Rockenbrant proceeding. See State v. Langley, 314 Or. 511, 840 P.2d 691 (1992) (reversing upon ground that evidence of Gray murder erroneously admitted in Rockenbrant proceeding).³ Defendant murdered both Gray and Rockenbrant while he was living on the grounds of the Oregon State Hospital and participating in a residential Criminal Treatment Program (CTP) for mentally and emotionally disturbed inmates.

As noted, after defendant had been convicted and sentenced to death for the Gray murder, this court reversed the sentence of death and remanded for a new penalty-phase proceeding (remand proceeding). This review stems from that remand proceeding, at which a jury again sentenced defendant to death. On direct review, defendant raises 22 assignments of error, only three of which we address in this opinion.

TRUE-LIFE SENTENCING OPTION

Defendant's primary assignment of error relates to the trial court's refusal to permit the jury to consider the option of sentencing him to life in prison without the possibility of parole (true life). Defendant argues that the trial court was required to instruct the jury on the true-life sentencing option under former ORS 163.150(5) (1993), set out post, renumbered as ORS 138.012(2) (1999),⁴ which, according to defendant, applied retroactively to his remand proceeding. In defendant's view, because he expressly waived any constitutional ex post facto objection to retroactive application of the true-life option,⁵ former ORS 163.150(5)(e) (1993) required the trial court to instruct the jury on that option.

We begin by setting out the relevant procedural history. Gray was reported missing in December 1987, and her body was discovered in April 1988. In November 1989, a jury convicted defendant of 16 counts of aggravated murder for Gray's death. At the time of defendant's trial, aggravated murder proceedings were governed by ORS 163.150 (1989),⁶ which recently had been amended

16 P.3d 492

by the 1989 Legislature and which, as relevant here, purported to apply retroactively to "trials commencing on or after July 19, 1989." ORS 163.150(4) (1989). Among other things, the 1989 amendments added true life as a sentencing option in aggravated-murder cases. Or Laws 1989, ch 720, § 2. Before the 1989 amendments, only death and life imprisonment with the possibility of parole (ordinary life) were possible sentences for aggravated murder. ORS 163.150(2) (1987)

The trial court in Langley I applied ORS 163.150 (1989) retroactively to defendant's case, instructing the jury on the new, truelife sentencing option. The jury unanimously answered "yes" to the four statutory questions set out in ORS 163.150(1)(b) (1989), and the trial court entered a judgment that convicted defendant of aggravated murder and sentenced him to death. Langley I, 314 Or. at 252, 254 n. 5, 839 P.2d 692.

In 1992, this court considered the case on direct review and affirmed all but one of defendant's convictions. However, the court concluded that the fourth question, asked of the jury pursuant to ORS 163.150(1)(b)(D) (1989), constitutionally was inadequate under State v. Wagner, 309 Or. 5, 18, 786 P.2d 93 (1990), because it failed to allow for proper consideration of mitigating evidence. Accordingly, the court vacated defendant's sentence of death and remanded the case to the trial court for further penalty-phase proceedings. Langley I, 314 Or. at 272, 839 P.2d 692. The court declined to consider defendant's additional pro se argument that application of the true-life sentencing option violated his constitutional protection against ex post facto laws, concluding that, on remand, defendant would be sentenced under the statutory scheme in effect at the time of his crime. In support, the court quoted State v. Isom, 313 Or. 391, 395, 837 P.2d 491 (1992), for the proposition that "the legislature intends that Oregon courts sentence criminal defendants under the statutory scheme in force when a particular criminal act was committed." Langley I, 314 Or. at 254 n. 5, 839 P.2d 692.

Both defendant and the state petitioned for reconsideration, which this court allowed to consider the ex post facto issue. Langley I, 314 Or. 247, 839 P.2d 692, on recons. 318 Or. at 30, 861 P.2d 1012 (Langley I (on reconsideration)). On reconsideration, the court discussed the then-recent case of State v. Wille, 317 Or. 487, 505, 858 P.2d 128 (1993), in which this court had held that "[r]etroactive imposition of [the true-life sentencing option] violated Article I, section 21, of the Oregon Constitution, and Article I, section 10, of the Constitution of the United States." The court concluded that the constitutional prohibition against ex post facto laws discussed in Wille, rather than the general rule set out in Isom, precluded retroactive application of the true-life sentencing option in defendant's case. See State v. McDonnell, 329 Or. 375, 384 n. 5, 987 P.2d 486 (1999) (summarizing Langley I (on reconsideration) in that manner). The court adhered to its earlier decision in Langley I and vacated defendant's sentence of death, based upon the inadequacy of the fourth question. As with Langley I, the court remanded the case to the trial court for further proceedings. Langley I (on reconsideration), 318 Or. at 32, 861 P.2d 1012.

At his remand proceeding, which commenced in 1994, defendant changed his strategy regarding the true-life sentencing option and sought to waive his ex post facto objection to retroactive application of ORS 163.150 (1989). Defendant specifically argued that the true-life option was available in his remand proceeding under former ORS 163.150(5) (1993), which provided for application of the true-life option in penalty-phase proceedings conducted on remand and purportedly applied "to any defendant sentenced to death after December 6, 1984."

16 P.3d 493

Former ORS 163.150(5)(e) (1993).⁷ The trial court rejected defendant's attempted waiver, reasoning that, because the true-life option did not exist at the time of defendant's crime, that option was not available in defendant's case in any circumstance under this court's collective decisions in Langley I. The trial court then applied the statute in effect at the time of defendant's crime, ORS 163.150 (1987), and instructed the jury that defendant must be sentenced either to death or to ordinary life. The jury answered the four statutory questions in the affirmative, and the trial court again sentenced defendant to death

On direct review of the remand proceeding, defendant now argues that the trial court erred by refusing to allow him to waive his ex post facto objections to the true-life sentencing option set out in former ORS 163.150(5) (1993). He primarily relies upon McDonnell, 329 Or. 375, 987 P.2d 486, in which this court held that a trial court erred by refusing to allow a defendant to waive his ex post facto objections to retroactive application of that statute. The state responds that, for various reasons, the rule set out in McDonnell either should not or cannot apply to this case.

We begin with the state's various preliminary contentions. The state first argues that the trial court lacked authority to instruct on the true-life sentencing option because that option was beyond the scope of this court's remand instructions in Langley I (on reconsideration). The state bases that argument upon its understanding that, in Langley I (on reconsideration), this court "unambiguously held that this defendant may not be sentenced to true life on remand." That characterization is inaccurate. Langley I (on reconsideration) merely recognized that defendant's constitutional protection against ex post facto laws, if asserted, would preclude the trial...