State v. McDonnell

• Decision Date: 07 October 1999
• Court: Oregon Supreme Court
• Parties: STATE of Oregon, Respondent, v. Michael Martin McDONNELL, Appellant.

987 P.2d 486

329 Or. 375

STATE of Oregon, Respondent, v. Michael Martin McDONNELL, Appellant.

(CC J8500004; SC S41231)

Supreme Court of Oregon.

Argued and Submitted May 3, 1996.

Resubmitted June 11, 1998.

Decided October 7, 1999.

Reconsideration Denied December 21, 1999.

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

Janet A. 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.

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

DURHAM, J.

Defendant appeals from a judgment that imposed a sentence of death following his conviction for aggravated murder. The judgment is subject to automatic review in this court. ORS 163.150(1)(g). For the reasons that follow, we vacate the sentence of death and remand this case to the circuit court for further penalty phase proceedings.

Defendant assigns error to the circuit court's refusal 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, consistent with the ex post facto provisions of the state and federal constitutions, to permit defendant to waive any objection to the jury's consideration of that option.² We restate below the procedural history of the case that pertains to that assignment.

On December 22, 1984, defendant killed Joey Keever. The facts regarding that crime are set out in State v. McDonnell, 313 Or. 478, 481-82, 837 P.2d 941 (1992) (McDonnell II). At that time, ORS 163.150 (1985) (Or. Laws 1985, ch. 3, § 3, which became effective December 6, 1984) provided a choice between two possible sentences for aggravated murder: death or life imprisonment with a 30-year minimum term of imprisonment (ordinary life). The statute required the jury in an aggravated murder sentencing proceeding to answer three questions. If the jury answered all the questions in the affirmative, the court was required to sentence the defendant to death. If the jury answered any question in the negative, the court was required to impose a sentence of ordinary life.³

In 1988, a jury found defendant guilty of aggravated murder in Keever's death and answered affirmatively the three death penalty questions. Accordingly, the court sentenced defendant to death. On direct review, this court vacated the judgment and remanded the case to permit the trial court to consider whether defendant should be permitted to plead guilty pursuant to a plea agreement. State v. McDonnell, 310 Or. 98, 794 P.2d 780 (1990) (McDonnell I).

On remand from McDonnell I, the circuit court reinstated the judgment and sentence of death. On a second direct review, this court in 1992 affirmed the conviction for aggravated murder but vacated the sentence of death and remanded the case for further proceedings, because the trial court's instructions on mitigating evidence during the penalty phase were inadequate. McDonnell II, 313 Or. at 506, 837 P.2d 941. This appeal is from those proceedings.

In 1989 and 1991, the legislature adopted amendments to Oregon's death penalty statute that were in effect during the penalty phase proceeding on remand from McDonnell II. The 1989 amendments increased the number of available sentencing options for aggravated murder by adding the choice of life imprisonment without the possibility of release or parole (true life). Or. Laws 1989, ch. 720, §§ 1, 2. The 1991 amendments added a procedure governing imposition of a sentence for aggravated murder after a reviewing court sets aside a death sentence and remands the case to the trial court. Or. Laws 1991, ch. 885, § 2. In this opinion, we refer to that penalty phase proceeding on remand as the remand proceeding. As a consequence of those amendments, at the time of defendant's remand proceeding, ORS 163.150 (1993) provided, in part:

"(1)(a) Upon a finding that the defendant is guilty of aggravated murder, the court, except as otherwise provided in subsection (3) of this section, shall conduct a separate sentencing proceeding to determine whether the defendant shall be sentenced to life imprisonment, as described in ORS 163.105(1)(c), life imprisonment without the possibility of release or parole, as described in ORS 163.105(1)(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 also instruct the jury that if it reaches a negative finding on any issue under subsection (1)(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(1)(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(1)(c).

"(b) If the jury returns a negative finding on any issue under subsection (1)(b) of this section and further finds that there are sufficient mitigating circumstances to warrant life imprisonment, the trial court shall sentence the defendant to life imprisonment in the custody of the Department of Corrections as provided in ORS 163.105(1)(c).

" * * * * *

"(5) Notwithstanding subsection (1)(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. No error in the sentencing proceeding shall result in reversal of the defendant's conviction for aggravated murder. Upon remand and at the election of the state, the trial court shall either:

"(A) Sentence the defendant to imprisonment for life in the custody of the Department of Corrections as provided in ORS 163.105(1)(c); or

"(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(1)(b); or

"(iii) Imprisonment for life in the custody of the Department of Corrections as provided in ORS 163.105(1)(c).

" * * * * *

"(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."

ORS 163.150(5)(a) (1993) required the trial court, at the state's election, to submit to a new jury the sentencing choices of death, true life, and ordinary life. The jury was required to answer four, rather than three, death penalty questions, but the court still was obligated to sentence defendant to death if the jury answered the four questions in the affirmative. If the jury answered any question in the negative, the court was required to sentence defendant to true life imprisonment, unless 10 or more jurors found that ordinary life imprisonment was the appropriate sentence. In the latter case, the court was required to sentence the defendant to ordinary life. As noted, the legislature made the 1991 amendments regarding resentencing after remand applicable to "any defendant sentenced to death after December 6, 1984." ORS 163.150(5)(e).

Before the start of the remand proceeding following McDonnell II, defendant asked the court to apply ORS 163.150(5) (1993), not the former statute that had been in effect at the time of defendant's crime. Defendant also stated that he waived any objection, including an ex post facto objection, to the application of ORS 163.150(5) (1993) to the remand proceeding. The state acquiesced in defendant's request to apply ORS 163.150(5) (1993).⁴

The trial court refused to apply ORS 163.150(5) (1993) to the remand proceeding. It reasoned, first, that it was obligated to sentence defendant under the law in effect at the time of his crime in 1984, not under ORS 163.150(5) (1993), and, second, that a defendant is not entitled to waive an ex post facto objection to a post-offense amendment to the death penalty statute. The court then convened the remand proceeding. The jury returned a verdict in which it answered affirmatively the four questions set out in ORS 163.150(1)(b). The court again sentenced defendant to death. This appeal followed.

Defendant contends that the true life option applies to the remand proceeding in this case by reason of ORS 163.150(5) (1993); that this court's decision in State v. Wille, 317 Or. 487, 858 P.2d 128 (1993), which addressed an ex post facto issue under ORS 163.150(2) (1989), does not preclude application of ORS 163.150(5) (1993) in this case; and that, in any event, defendant was entitled to waive his potential ex post facto objection to the application of the true life option to his case. Defendant...