State v. Rogers

CourtSupreme Court of Oregon
Citation4 P.3d 1261,330 Ore. 282,330 Or. 282
PartiesSTATE of Oregon, Respondent, v. Dayton Leroy ROGERS, Appellant.
Decision Date04 May 2000

4 P.3d 1261
330 Or.
330 Ore. 282

STATE of Oregon, Respondent,
Dayton Leroy ROGERS, Appellant

(CC 88-355, 88-356, 88-357, 88-358, 88-359, 88-360; SC S41392)

Supreme Court of Oregon.

Argued and Submitted January 8, 1999.

Decided May 4, 2000.

4 P.3d 1263
Diane L. Alessi, Deputy Public Defender, Salem, argued the cause for appellant. With her on the briefs was Sally L. Avera, Public Defender, Salem

Janet 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. Robert B. Rocklin, Assistant Attorney General, Salem, filed a supplemental brief for respondent.



Defendant appeals from a judgment that imposed a sentence of death following his conviction on 13 counts of aggravated murder.

4 P.3d 1264
The judgment is subject to automatic review in this court. Former ORS 163.150(1)(g), repealed by Or. Laws 1999, ch. 1055, § 1.2 For the reasons that follow, we vacate the sentence of death and remand this case to the circuit court for further penalty-phase proceedings

Over a period of time in 1987, police discovered the bodies of seven women in the Mollala Forest. The State Medical Examiner determined that each of the women had been stabbed or cut with a sharp object. When the bodies were discovered, defendant was in police custody as a suspect in the killing of another woman, Smith. Smith had died from multiple stab wounds. Smith and the seven women buried in the Mollala Forest were prostitutes. The facts surrounding the Mollala Forest killings shared other similarities with those surrounding the Smith killing. During the investigation of the Mollala Forest killings, defendant was convicted of aggravated murder for killing Smith, but he was not sentenced to death.

In May 1989, defendant was found guilty of 13 counts of aggravated murder arising out of six of the Molalla Forest killings.3 In June 1989, the court sentenced defendant to death. On automatic review, this court vacated the death sentence and remanded the case to the trial court for a new penalty-phase proceeding that would include the so-called "fourth question," as explained in State v. Wagner, 309 Or. 5, 786 P.2d 93 (1990). State v. Rogers, 313 Or. 356, 836 P.2d 1308 (1992). In May 1994, after a new penalty-phase proceeding before a jury (the remand proceeding), the trial court again sentenced defendant to death.


During the remand proceeding, the trial court refused 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 to permit defendant to waive any objection, under the ex post facto provisions of the state and federal constitutions, to the jury's consideration of that option.4 Defendant assigns error to that refusal.

When defendant committed his crimes, ORS 163.150 (1985) provided two sentencing options for aggravated murder: death or life in prison with a 30-year minimum (ordinary life). After the first penalty-phase proceeding, the legislature added a third option: life in prison with no possibility of parole (true life). During the remand proceeding, defendant submitted a "motion to accept defendant's waiver of ex post facto issue and to submit life without parole option to jury with appropriate instructions." The state opposed the motion, and the trial court refused to allow the jury to consider the true-life option.

Defendant argues that that refusal was erroneous for several reasons, including that criminal defendants may waive any ex post facto challenge. This court addressed a similar issue in State v. McDonnell, 329 Or. 375, 987 P.2d 486 (1999). In McDonnell, the defendant did not object, on an ex post facto ground or otherwise, to the retroactive application of the true-life sentencing option in his remand proceeding and filed a waiver of any ex post facto objection. The trial court nevertheless refused to apply ORS 163.150(5) (1993), which was in effect at the time of the remand proceeding, and instructed the jury

4 P.3d 1265
only about the two sentencing options that were in effect when the defendant committed his crime. The defendant was sentenced to death. On review, this court concluded that the trial court erred in refusing to apply ORS 163.150(5) (1993), reasoning that the defendant was entitled to, and did, waive the constitutional protection against ex post facto laws by failing to assert a timely objection or to claim that a post-offense sentencing statute is an ex post facto law. 329 Or. at 390, 392, 987 P.2d 486

Defendant argues, as did the defendant in McDonnell, that he was entitled to have ORS 163.150(5) (1993) applied in his remand proceeding. This case, however, presents several variations on McDonnell. First, in this case, the state argues that the legislature did not intend ORS 163.150(5) (1993) to apply in this situation, because, according to the state, defendant's "trial[ ] commenc[ed]" before July 19, 1989. ORS 163.150(4) (1993). Second, in this case, unlike in McDonnell, the state objected to defendant's waiver of his ex post facto objections to the application to his remand proceeding of ORS 163.150(5) (1993). Third, the state contends that defendant's written motion to accept his waiver of his ex post facto objection was inadequate. For the reasons that follow, we hold that those arguments do not require a different result than in McDonnell.

The state first argues that the true-life option should not apply to defendant because, although the legislature intended that ORS 163.150 (1993) would apply retroactively, the legislature, in ORS 163.150(4) (1993), limited that retroactive application to remand proceedings in which the trial had commenced on or after July 19, 1989. The state argues that a "trial commences," for purposes of ORS 163.150(4) (1993), at the beginning of the first guilt-phase proceeding and, because defendant's first guilt-phase proceeding began in March 1989, the trial court had no authority to apply the true-life option to defendant.

Defendant responds that ORS 163.150(4) (1993) does not control here. Defendant contends that this court remanded his case for a new penalty-phase proceeding and that ORS 163.150(5) (1993) governs that remand proceeding. ORS 163.150(5)(a)(B) (1993) directs that all three sentencing options be available to the jury in remand proceedings. ORS 163.150(5)(e) (1993) provides that "[t]he provisions of this section * * * shall apply to any defendant sentenced to death after December 6, 1984." According to defendant, ORS 163.150(5) (1993) evinces a legislative intention that defendants who are sentenced to death after December 6, 1984, have all three sentencing options available if their cases are remanded for new penalty-phase proceedings. Defendant further contends that, even if the effective date provision in ORS 163.150(4) (1993) applies here—meaning that the legislature intended the true-life option to be available to only those defendants whose trials commenced after July 29, 1989—a "trial commences" not only at the beginning of the first guilt-phase proceeding, but also at the beginning of a new penalty-phase proceeding after remand. According to defendant, because his penalty-phase proceeding after remand began in March 1994, he is among those persons to whom the court may apply the true-life option.

As this court explained in McDonnell, before assessing whether a defendant may or did waive an ex post facto objection to the application of a post-offense statute, we must ascertain whether the legislature intended to adopt retrospective legislation that applies to the situation at hand. 329 Or. at 382-83, 987 P.2d 486. In McDonnell, this court concluded that the legislature intended that all three sentencing options be available in remand proceedings in which a defendant had been sentenced to death after December 6, 1984. Id. at 383, 987 P.2d 486. In essence, the state contends that that conclusion was incorrect because, instead of looking to the effective date in ORS 163.150(5)(e) (1993), the court should have looked to the effective date in ORS 163.150(4) (1993), an argument that the defendant in McDonnell did not raise. Which provision governs is a question of statutory interpretation to which the methodology summarized in PGE v. Bureau of Labor and Industries, 317 Or. 606, 610-12, 859 P.2d 1143 (1993), applies.

The relevant parts of ORS 163.150 (1993) provide:

"(1)(a) Upon a finding that the defendant is guilty of aggravated murder, the

4 P.3d 1266
court * * * 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.

"* * * * *


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