State v. Nefstad

Citation309 Or. 523,789 P.2d 1326
PartiesSTATE of Oregon, Respondent, v. Stephen Leroy NEFSTAD, Appellant. CC C87-03-31733, SC S34971.
Decision Date03 May 1990
CourtSupreme Court of Oregon

Timothy A. Sylwester, Asst. Atty. Gen., Salem, argued the cause, for respondent. With him on the brief, were Dave Frohnmayer, Atty. Gen., Virginia L. Linder, Sol. Gen., and Diane S. Lefkow, Michael C. Livingston, Janet A. Metcalf and Brenda J Peterson, Asst. Attys. Gen.


JONES, Judge.

In this case of automatic review, defendant appeals his conviction of aggravated murder and associated death sentence. We affirm defendant's conviction of aggravated murder. We find the sentencing proceeding to be inadequate for the reasons stated in State v. Wagner, 309 Or. 5, 786 P.2d 93 (1990). Accordingly, we remand the case to the circuit court for a new sentencing proceeding.


Shortly after midnight on Friday, March 13, 1987, defendant Stephen Leroy Nefstad and co-defendant Reyes Miranda drove to the Acropolis Tavern in Portland. There defendant struck up a conversation with the victim, Steven A. Jackson. At about 1:45 a.m., Jackson told his companions "that he would be right back" and then stepped outside the tavern with defendant and Miranda. Jackson was never seen alive again.

A few miles away from the tavern at 2:37 a.m., defendant Miranda used Jackson's automatic teller bank card to withdraw $200 from Jackson's account. Sometime during this period, Jackson was brutally murdered by repeated stab wounds to his chest, and his body was left off of a dead-end street. The front passenger area of Miranda's vehicle was covered with blood; Miranda's clothes were soaked with blood, and defendant also had blood on his clothes.

Defendant stated to his friends that "something heavy had gone down. That they [defendant and Miranda] had to take this guy out. That he was history." Miranda admitted that after the stabbing, his car looked like "Psycho III." When the police took defendant in for questioning, defendant identified himself as "Johnson" and gave a false date-of-birth. He told the police that "he didn't know anything about the homicide." Defendant told the officers an exculpatory story. The jury, however, found that he and Miranda had killed Jackson.


We address most of defendant's assignments of error raised in defendant's voluminous appellate brief and addenda.


Whether the trial court properly overruled defendant Nefstad's objections to the prosecutors' use of the words "I anticipate" during voir dire.

During voir dire, the prosecutors explained to several of the prospective jurors that they anticipated the trial to include a guilt phase and a penalty phase. Defendant Nefstad objected to the prosecutors' use of the words "I anticipate." The trial court overruled defendant Nefstad's objections. On appeal, defendant Nefstad complains that the prosecutors' repeated use of the phrase "I anticipate" constituted improper expressions of personal belief. The prosecutors' statements, however, were neither expressions of belief nor improper.

The examination of a juror on voir dire serves two purposes: (1) to ascertain whether a cause for challenge exists, and (2) to ascertain whether the parties desire to exercise their legal right of peremptory challenge. State v. Lauth, 46 Or. 342, 349, 80 P. 660 (1905). In an aggravated murder case, if the jury finds the defendant guilty, the same jury then determines whether he should receive a sentence of life imprisonment or death. ORS 163.150(1). Voir dire examination thus may include inquiries into each juror's feelings about the death penalty. See Witherspoon v. Illinois, 391 U.S. 510, 88 S.Ct. 1770, 20 L.Ed.2d 776 (1968); State v. Jensen, 209 Or. 239, 281, 289 P.2d 687, 296 P.2d 618, app. dismissed 352 U.S. 948, 77 S.Ct. 329, 1 L.Ed.2d 241 (1956); State v. Leland, 190 Or. 598, 227 P.2d 785 (1951), aff'd 343 U.S. 790, 72 S.Ct. 1002, 96 L.Ed. 1302 (1952). It was appropriate for the prosecutors to determine whether each juror's views on the death penalty would "prevent or substantially impair the performance of his duties as a juror in accordance with his instructions and his oath." Wainwright v. Witt, 469 U.S. 412, 424, 105 S.Ct. 844, 852, 83 L.Ed.2d 841 (1985). See also Adams v. Texas, 448 U.S. 38, 44, 100 S.Ct. 2521, 2526, 65 L.Ed.2d 581 (1980) (in capital cases, states have interest in retaining jurors who can and will follow instructions in determining sentence).

A prosecutor cannot effectively learn the views of a juror who thinks that the inquiries into the death penalty merely are academic, and who does not understand that there truly exists the possibility of ultimately having to decide whether a defendant should receive a sentence of death. To answer the prosecutor's questions candidly, the juror must anticipate fulfilling the role of a factfinder not only during the guilt phase but also during the penalty phase of the trial.


The issue here is whether the trial court properly excluded prospective juror Richardson for cause. 1

Defendant summarized his argument as follows:

"Reverand [sic ] Richardson clearly stated that despite his views about the treatment of minorities in the criminal justice system and the effect that would have on his views on the death penalty, he could set aside those views and answer the three death questions in such a way as to result in the imposition of the death penalty in this case if the evidence warranted it. Therefore, the exclusion of Reverand [sic ] Richardson violates the rules set down in Witherspoon v. Illinois, 391 US 510 [88 S.Ct. 1770, 20 L.Ed.2d 776] (1968); Wainwright v. Witt, 469 US 412 [105 S.Ct. 844, 83 L.Ed.2d 841] (1985) and Gray v. Mississippi, US , 107 S Ct 2045, 95 L Ed 2d 622 (1987)."

The trial court's ruling on the state's challenge for cause was not based on Richardson's opposition to the death We initially discuss the standard this court applies in reviewing a trial court's decision to exclude a prospective juror because of actual bias. In a criminal case, ORCP 57 D(1)(g) governs challenges for cause based on actual bias. ORS 136.210(1). The rule provides:

                penalty and did not violate "the rules" set forth in Wainwright v. Witt, supra, and Witherspoon v. Illinois, supra.   Together the Witt and Witherspoon holdings define the constitutional limitations on the state's power to exclude a prospective juror who is challenged for cause because of his opposition to the death penalty. 2  Witt and Witherspoon plainly do not govern (much less prohibit) the exclusion of a prospective juror who, like Richardson, has shown through his voir dire testimony and jury questionnaire responses that he has other biases that substantially would impair his ability to try the issues in the case impartially and to follow the law

"Challenges for cause may be taken on any one or more of the following grounds:

" * * * * *

"(g) Actual bias, which is the existence of a state of mind on the part of the juror, in reference to the action, or to either party, which satisfies the court, in the exercise of a sound discretion, that the juror cannot try the issue impartially and without prejudice to the substantial rights of the party challenging. A challenge for actual bias may be taken for the cause mentioned in this paragraph, but on the trial of such challenge, although it should appear that the juror challenged has formed or expressed opinion upon the merits of the cause from what the juror may have heard or read, such opinion shall not of itself be sufficient to sustain the challenge, but the court must be satisfied, from all the circumstances, that the juror cannot disregard such opinion and try the issue impartially." (Emphasis added.)

In decisions dating back to the turn of the century, this court, applying statutes with provisions similar to those of ORCP 57 D(1)(g), consistently has confirmed that (1) it does not review de novo a trial court's ruling on a challenge based on actual bias, and (2) it accords great weight to a trial court's finding of fact whether a prospective juror can try a case impartially. 3

Specifically, this court has held that a trial court's exercise of discretion under the applicable statute "will not be disturbed in the absence of a finding of a manifest abuse of that discretion." Lambert v. Srs. of St. Joseph, 277 Or. 223, 229, 560 P.2d 262 (1977). See also State v. Brumfield, 104 Or. 506, 527, 209 P. 120 (1922); State v. Armstrong, 43 Or. 207, 73 P. 1022 (1903). The court also has observed that "[i]t is difficult to formulate a concise and accurate definition" of the term, "abuse of discretion." Lambert v. Srs. of St. Joseph, supra. In any event, if the trial court's finding of actual bias is supported by the record of the voir dire, taken as a whole, the finding should not be disturbed on appeal.

In this case, the trial court found, on the basis of Richardson's responses on "The [trial] court gave several reasons for excluding Reverand [sic ] Richardson from the panel, but it is clear that despite the court's statements, the only basis for exclusion for cause--and one of the reasons that the court clearly stated--was the Reverand's [sic ] opposition to the death penalty." (Emphasis added.)

the jury questionnaire and his voir dire testimony, that he had pre-existing biases concerning the criminal justice system and members of minority groups that would have prevented him from trying this case impartially. Defendant Nefstad has simply misconstrued the reasons for the exclusion of this prospective juror, effectively ignoring the express findings of the trial court. He contends that:


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47 cases
  • State v. Williams
    • United States
    • Oregon Supreme Court
    • March 26, 1992
    ...a photograph inherently is unfair to the defendant in the penalty phase. 11 This court rejected the same argument in State v. Nefstad, 309 Or. 523, 560, 789 P.2d 1326 (1990). We are not persuaded that we should overrule Nefstad. The statute under which the trial court admitted Exhibits 38 a......
  • State v. Guzek
    • United States
    • Oregon Supreme Court
    • November 24, 1995
    ...State v. Williams, 313 Or. 19, 27-28, 828 P.2d 1006, cert. den. 506 U.S. 858, 113 S.Ct. 171, 121 L.Ed.2d 118 (1992); State v. Nefstad, 309 Or. 523, 560, 789 P.2d 1326 (1990). It also is clear that "sentencing" occurs in capital cases. ORS 163.150 uses the term "sentencing" many times, in de......
  • State v. Taylor
    • United States
    • Oregon Supreme Court
    • February 7, 2019
    ...substantially impair the performance of his duties as a juror in accordance with his instructions and his oath.’ " State v. Nefstad , 309 Or. 523, 538, 789 P.2d 1326 (1990) (quoting Wainwright v. Witt , 469 U.S. 412, 424, 105 S.Ct. 844, 83 L.Ed.2d 841 (1985) ).10 The correct focus of the co......
  • State v. Longo
    • United States
    • Oregon Supreme Court
    • November 9, 2006
    ...court found "no reason to believe" that juror 1853 was a racial minority, and we must defer to that finding. See State v. Nefstad, 309 Or. 523, 528, 537-38, 789 P.2d 1326 (1990) (giving "great weight" to trial court's impressions of potential juror in reviewing court's decision to exclude j......
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1 books & journal articles
  • Voir Dire; Juror List
    • United States
    • James Publishing Practical Law Books Building Trial Notebooks - Volume 1 Building Trial Notebooks
    • April 29, 2013
    ...(venireperson who demonstrates partiality cannot render himself impartial simply by stating he can be impartial); State v. Nefstad , 309 Or. 523, 529, 789 P.2d 1326, 1332 (1990) (stated biases against minorities and the justice system but said he could be fair; properly excluded); State v. ......

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