State v. Rogers

• Citation: 352 Or. 510,288 P.3d 544
• Parties: STATE of Oregon, Plaintiff–Respondent, v. Dayton Leroy ROGERS, Defendant–Appellant.
• Decision Date: 11 October 2012
• Court: Supreme Court of Oregon

352 Or. 510
288 P.3d 544

STATE of Oregon, Plaintiff–Respondent,
v.
Dayton Leroy ROGERS, Defendant–Appellant.

Supreme Court of Oregon.

(CC 88–355, 88–356, 88–357, 88–359, 88–360, SC S053466).
Argued and Submitted Jan. 12, 2012.
Decided Oct. 11, 2012.

[288 P.3d 545]

J. Kevin Hunt, Oregon City, and Richard L. Wolf, Portland, argued the cause and filed the briefs for defendant-appellant.

Timothy A. Sylwester, Assistant Attorney General, Salem, argued the cause and filed the brief for plaintiff-respondent. With him on the brief were John R. Kroger, Attorney General, and David B. Thompson, Interim Solicitor General.

Jeffrey E. Ellis, Oregon Capital Resource Center, Portland, filed a brief for amici curiae Oregon Capital Resource Center; Oregon Criminal Defense Lawyers Association; and American Civil Liberties Union Foundation of Oregon. With him on the brief were Robert S. Raschio, The Dalles, and Kevin Diaz, Portland.

Before DE MUNIZ, DURHAM, and WALTERS, JUSTICES, HASELTON, Chief Judge, and BREWER, Judge.^*

[288 P.3d 546]

WALTERS, J.

[352 Or. 512]This is an automatic and direct review pursuant to ORS 138.012(1) of sentences of death imposed on defendant after a “penalty phase” trial.¹ Defendant raises 33 assignments of error. Five of them merit discussion, specifically, defendant's claims that (1) the adoption of Article I, section 40, of the Oregon Constitution, which, provides that, in specified circumstances, death shall be the penalty for aggravated murder, violated the “separate vote” requirement of Article XVII, section 1, of the Oregon Constitution; (2) the so-called “third question,” which asks whether defendant's conduct was “unreasonable in response to the provocation, if any, by the deceased,” is constitutionally infirm; (3) the trial court erred by refusing to admit evidence relevant to the third question or failing to pose the question to the jury; (4) the trial court erred in empanelling an “anonymous” jury; and (5) the trial court erred in allowing the state's expert to testify about defendant's consensual homosexual experience as a teenager.

We discuss but reject defendant's arguments as to three of those assignments of error. We conclude that his position as to the fourth and fifth are well-taken. We conclude that the trial court erred in empanelling an “anonymous” jury without finding, as required by this court's decision in State v. Sundberg, 349 Or. 608, 247 P.3d 1213 (2011), that there were strong and particular grounds for believing that the jurors' identities needed to be protected. Because that error was not harmless, we vacate the sentences of death and remand to the circuit court for a new penalty-phase trial.² We

[288 P.3d 547]

352 Or. 513]also conclude that the trial court erred in denying defendant's motion to exclude evidence of defendant's homosexual experiences as a teenager.A. Defendant's challenge to Article I, section 40, of the Oregon Constitution.

The first claim that we discuss is defendant's “separate vote” challenge to the validity of Article I, section 40, of the Oregon Constitution, a provision that was adopted by the [352 Or. 514]people in 1984 as “Ballot Measure 6.” Article I, section 40, provides:

“Notwithstanding sections 15 and 16 of this Article, the penalty for aggravated murder as defined by law shall be death upon unanimous affirmative jury findings as provided by law and otherwise shall be life imprisonment with minimum sentence as provided by law.”

Defendant contends that Article I, section 40, was void ab initio because it was adopted in a manner that violated the “separate vote” requirement, set out at Article XVII, section 1, of the Oregon Constitution, for constitutional amendments submitted to the people. Defendant further contends that, because Article I, section 40, was void when adopted, the “entire statutory ‘Oregon Death Penalty Scheme’ ( i.e., all substantive and procedural statutes purporting to authorize and implement capital punishment in Oregon * * *)” ³ also is void because it is “dependent for constitutionality” on Article I, section 40.

Article XVII, section 1, of the Oregon Constitution provides, in part:

“When two or more amendments shall be submitted * * * to the voters of this state at the same election, they shall be so submitted that each amendment shall be voted on separately.”

That “separate vote” requirement is “aimed at ensuring that the voters are able to express their will in one vote as to only one constitutional change.” Armatta v. Kitzhaber, 327 Or. 250, 269, 959 P.2d 49 (1998).

Armatta is the seminal case on the separate-vote requirement. There, the court compared the wording, historical development, and case law surrounding Article XVII, section 1, with the “single-subject” requirement for initiated measures, set out at Article IV, section 1(2)(d),⁴ and concluded that the two constitutional provisions were different [352 Or. 515]in a number of respects. Most significantly, the court observed that, whereas the single-subject requirement focuses on the content of a proposed statute or amendment, the separate-vote requirement focuses on the form of submission of an amendment and the potential changes to the existing constitution that the amendment proposes. Id. at 274, 959 P.2d 49.

Based on that analysis, the court concluded that, when faced with a claim that a proposed constitutional amendment offends Article XVII, section 1, the proper inquiry is “whether, if adopted, the proposal would make two or more changes to the constitution that are substantive and that are not closely related.” Id. at 277, 959 P.2d 49.

The analysis in Armatta, and in other separate-vote cases that have followed, establishes two principles that are important to determining whether a ballot measure makes “two or more changes” to the Oregon Constitution that require separate votes. First, if a measure proposes to add new matter to the constitution, the measure proposes at least one constitutional change. Lehman v. Bradbury, 333 Or. 231, 242–43, 37 P.3d 989 (2002);

[288 P.3d 548

Armatta, 327 Or. at 277–78, 959 P.2d 49. Second, if a measure has the effect of modifying an existing constitutional provision, it proposes at least one additional change to the constitution, whether that effect is express or implicit. Meyer v. Bradbury, 341 Or. 288, 297, 142 P.3d 1031 (2006); Lehman, 333 Or. at 243, 37 P.3d 989;Armatta, 327 Or. at 278–80, 959 P.2d 49.

Applying those principles, defendant asserts that Measure 6 proposed to change the Oregon Constitution in 15 separate ways. The state acknowledges three of those changes: (1) the addition of a new constitutional requirement that a person convicted of aggravated murder be sentenced to death or life imprisonment; (2) an amendment to former Article I, section 15—specifically, an exemption from section 15's then-existing ⁵ admonition that criminal penalties must [352 Or. 516]be based on principles of reformation rather than vindictive justice; and (3) an amendment to Article I, section 16, specifically an exemption from section 16's prohibition on cruel and unusual punishment and requirement of proportionate punishment.⁶ We agree that Article I, section 40, proposed at least those three changes, but, before we analyze whether Measure 6 was invalid because it did not permit a separate vote on each of those changes, we turn to the question whether, as defendant contends, that measure also proposed additional changes to the constitution.

We begin with defendant's assertion that Measure 6 proposed not one, but two, new additions to the constitution. Defendant argues that that is so because the measure declares that (1) the sentence for aggravated murder in certain specified circumstances is death, and (2) the sentence for aggravated murder in other circumstances is life imprisonment. We disagree. The measure provides that, “upon unanimous affirmative jury findings as provided by law,” death is the penalty for aggravated murder. The measure then specifies the penalty that must be imposed when the jury does not make those findings. The latter declaration merely completes the sentencing construct that the former declaration describes; it does not propose to add a separate constitutional provision.

Defendant also contends that Measure 6 proposed a separate amendment to the constitution by “permitting” the death penalty. Although defendant does not explain that contention, we assume that it relates to defendant's claim in a different assignment of error that, at the time that Measure 6 was considered, the constitution contained an actual, albeit implied, prohibition on the death penalty. Defendant's theory, in a nutshell, is that the 1964 repeal of two constitutional provisions that authorized the death penalty revived, sub silentio, a preceding (1920) provision that had abolished [352 Or. 517]the death penalty.⁷ Defendant suggests that Measure 6 separately proposed to amend that prohibition by declaring that the penalty for aggravated murder was, in certain circumstances, death.

Defendant's theory depends on our agreement with his idea that a constitutional provision

[288 P.3d 549]

that is repealed by a later constitutional amendment is revived when the amendment is itself repealed. That idea is contrary to this court's ordinary method of constitutional interpretation, as described in ORS 174.090,⁸ and we reject it. It follows that, although Measure 6 proposed the addition of a provision to the constitution that “permitted” the death penalty for aggravated murder, it did not, as defendant seems to suggest, also propose the revival of an earlier prohibition on the death penalty and separately amend it.

Next, defendant contends that by using the introductory phrase “notwithstanding sections 15 and 16 of this Article,” Measure 6 proposed ten separate constitutional changes. First, defendant argues, the measure effectively proposed to amend the directive in Article I, section 16, that, “[i]n all criminal cases whatever, the jury shall...