State v. Montez

Decision Date21 November 1996
Citation927 P.2d 64,324 Or. 343
PartiesSTATE of Oregon, Respondent, v. Marco Antonio MONTEZ, II, Appellant. CC C870834702; SC S39670.
CourtOregon Supreme Court

John P. Daugirda, Eugene, argued the cause and filed the briefs for appellant. Appellant filed a supplemental brief pro se.

Timothy A. Sylwester, Assistant Attorney General, Salem, argued the cause for respondent. With him on the brief were Theodore R. Kulongoski, Attorney General, Virginia L. Linder, Solicitor General, and Richard D. Wasserman, Assistant Attorney General.


DURHAM, Justice.

This case is before us for the second time on automatic and direct review of a sentence of death. ORS 163.150(1)(g). In 1988, a jury found that defendant had committed aggravated murder and related offenses, and he was sentenced to death. 1 The crimes occurred on June 21, 1987. This court affirmed defendant's convictions but vacated his 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 ). 2 State v. Montez, 309 Or. 564, 789 P.2d 1352 (1990) (Montez I ).

On remand, the trial court empaneled a new sentencing jury. The court instructed the jury to answer the following questions:

1. "Was the conduct of the defendant that caused the death of the deceased committed deliberately and with a reasonable expectation that death would result?"

2. "Is there is a probability that the defendant would commit criminal acts of violence that would constitute a continuing threat to society?"

3. "Should the defendant receive the death sentence, you should answer this question no if you find that there is any aspect of the defendant's character or background or any circumstances of the offense that you believe would justify a sentence less than death." 3

The jury answered those questions in the affirmative and, pursuant to ORS 163.150(1)(f), 4 the trial judge imposed a sentence of death.

Defendant requests that this court vacate his death sentence and raises 10 assignments of error. We conclude that none of defendant's assignments of error has merit and, accordingly, affirm the sentence of death. 5 We consider defendant's subconstitutional arguments before his constitutional ones.


Defendant contends that the trial court erred in denying his motion to declare the Oregon Evidence Code (OEC) applicable to the second penalty-phase proceeding. See State v. Stevens, 319 Or. 573, 580, 879 P.2d 162 (1994) ("The standard of relevance set forth in OEC 401 applies in penalty-phase proceedings."). Defendant contends that, during the first trial of this case, the state stipulated that the OEC would apply to the penalty-phase proceeding. Defendant further asserts that, because the second penalty-phase proceeding was a continuation of the first trial, the state is bound by that stipulation in the second penalty-phase proceeding.

Defendant also argues that the trial court's prior approval of the application of the OEC to the penalty phase constituted the law of the case, as articulated in State v. Pratt, 316 Or. 561, 569, 853 P.2d 827 (1993), quoting Simmons v. Wash. F.N. Ins. Co., 140 Or. 164, 166, 13 P.2d 366 (1932):

" 'It is a general principle of law and one well recognized in this state that when a ruling or decision has been once made in a particular case by an appellate court, while it may be overruled in other cases, it is binding and conclusive both upon the inferior court in any further steps or proceedings in the same litigation and upon the appellate court itself in any subsequent appeal or other proceeding for review.' "

Assuming arguendo, without deciding, that the state is bound by an earlier agreement to abide by the OEC and that the trial court's approval did constitute the law of the case, defendant has not demonstrated that any prejudice resulted from the trial court's ruling. Defendant argues that he was prejudiced because the trial court admitted "other crimes and other bad act evidence which should have been excluded under the balancing of OEC 403 and as inadmissible hearsay under the evidence code." However, defendant has not identified any evidence, admitted by the trial court, that the OEC makes inadmissible. Defendant's assignment of error, therefore, is not well taken.


Defendant argues that the trial court improperly admitted certain evidence during his second penalty-phase proceeding. First, defendant argues that the trial court erred in permitting the state to introduce evidence that the state had introduced previously in the guilt-phase proceeding. Defendant asserts that the trial court erred in admitting that evidence in the second penalty-phase proceeding because the evidence was repetitive and subject to exclusion under ORS 163.150(1)(a), which provides as material:

"Upon a finding that the defendant is guilty of aggravated murder, the court * * * shall conduct a separate sentencing proceeding to determine whether the defendant shall be sentenced to life imprisonment * * * or death. * * * In the proceeding, evidence may be presented as to any matter that the court deems relevant to sentence * * *; however, neither the state nor the defendant shall be allowed to introduce repetitive evidence that has previously been offered and received during the trial on the issue of guilt." (Emphasis added.)

The state responds that the provision does not apply if a second penalty-phase proceeding is held on remand and the newly empaneled sentencing jury did not participate in the guilt-phase proceeding of the original trial. We agree with the state's interpretation of the statute.

The emphasized text contemplates that the same jury that determined the defendant's guilt also will determine the defendant's sentence. In a typical case, the penalty-phase proceeding is simply a part of the trial to which the defendant is entitled. The statute prohibits the parties from introducing "repetitive" evidence in the penalty-phase proceeding that already has been presented to the jury during the guilt-phase proceeding. However, that is not the case when, as here, the court empanels a new jury on retrial after a reversal of an earlier death sentence. In that context, because the newly empaneled jury did not sit through the earlier guilt-phase proceeding, the jury has not heard or considered any evidence introduced during that phase. As to that jury, evidence introduced in the second penalty-phase proceeding is not "repetitive" within the meaning of the statute. We conclude that the trial court did not err in permitting the state, during the second penalty-phase proceeding before a newly empaneled jury, to introduce evidence that the state had introduced previously during the guilt-phase proceeding.

Second, defendant argues that the trial court erred in permitting the state to introduce certain exhibits that the court had admitted previously during the guilt-phase proceeding, because the state offered those exhibits in an altered form in the second penalty-phase proceeding. Defendant argues that the alterations were calculated to inflame and prejudice the jury and that the trial court should have required the state to reintroduce the exhibits in the same form in which the state had offered them during the guilt-phase proceeding.

Defendant does not cite any authority, and we are aware of none, that precludes the state from introducing exhibits in a different form in a second penalty-phase proceeding in a capital case. Moreover, we are unpersuaded that defendant suffered any prejudice as a consequence of the admission of the challenged exhibits. Accordingly, we reject defendant's argument.

Third, defendant argues that the exhibits were inadmissible because the state had removed them from the chain of custody. In this case, the state offered exhibits at the first trial and reclaimed them after that trial. The exhibits remained continuously in the state's possession until the state offered them at retrial. Defendant does not contend that anyone tampered with the exhibits during that period. Under the circumstances, we conclude that the trial court did not abuse its discretion in admitting the exhibits, because there was no gap in the chain of custody.

We have considered defendant's remaining claims pertaining to the introduction of the exhibits and conclude that those claims are not well taken.


Defendant argues that, during the second penalty-phase proceeding, the court took several actions that caused the jury to speculate about the possibility that the state would place defendant on parole if the jury sentenced him to life imprisonment. From that premise, he concludes that, in order to avoid the possible result of a sentence less than death, the jury imposed the death penalty. We consider each of his specific arguments.

Defendant argues that the trial court erred by allowing the state to introduce evidence concerning his prior performance on probation and parole. Defendant argues that the evidence was irrelevant under OEC 401 6 and was unfairly prejudicial, confusing, and misleading under OEC 403 7 as to the second question, i.e., future dangerousness and, in addition, was irrelevant to the jury's determination of the fourth question, i.e., whether defendant should receive the death penalty. The trial court disagreed with the latter argument. Defendant asserts that the state offered the evidence to encourage the jury to ensure that defendant would not be paroled in the future by imposing the death penalty and, therefore, that the trial court should have excluded the evidence. Defendant relies primarily on State v. Douglas, 310 Or. 438, 800 P.2d 288 (1990), and State v. Smith, 310 Or. 1, 791 P.2d 836 (1990).

According to the state,...

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