State v. Stevens

CourtSupreme Court of Oregon
Citation879 P.2d 162,319 Or. 573
PartiesSTATE of Oregon, Respondent, v. Dallas Ray STEVENS, Appellant. CC 88-02-0368; SC S39427.
Decision Date18 August 1994

Stephen J. Williams, Deputy Public Defender, Salem, argued the cause, for appellant. Diane L. Alessi, Chief Deputy Public Defender, with Sally L. Avera, Public Defender, filed the brief. Dallas Ray Stevens, appellant, filed a supplemental brief pro se.

Janet A. Metcalf, Asst. Atty. Gen., Salem, argued the cause, for respondent. With her on the briefs were Theodore R. Kulongoski, Atty. Gen., Virginia L. Linder, Sol. Gen., and Brenda JP Rocklin and Kaye E. Sunderland, Asst. Attys. Gen.

CARSON, Chief Justice.

This is an automatic and direct review of a sentence of death based upon a conviction of aggravated murder. ORS 163.150(1)(g). 1 Defendant requests that this court vacate his death sentence. We vacate the sentence of death and remand to the circuit court for further proceedings.

In November 1988, a jury convicted defendant of three counts of aggravated murder following the February 1988 death of Nichole Edwards. 2 Defendant was sentenced to death.

On the first direct review, this court affirmed defendant's three convictions of aggravated murder but vacated defendant's death sentence because "the trial court gave instructions that unconstitutionally limited the way in which the jury could consider mitigating evidence about him." State v. Stevens, 311 Or. 119, 148, 806 P.2d 92 (1991) (citing 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 ] 3). In the penalty-phase proceeding on remand, a jury again sentenced defendant to death. That death sentence is reviewed here.

Defendant argues that the trial court in his second penalty-phase proceeding erred in excluding evidence that is relevant to the "fourth question" provided in ORS 163.150 4 and required by the Eighth Amendment to the Constitution of the United States. 5 Defendant argues that the trial court erred in sustaining the state's objection to a question that defendant's lawyer asked a state's witness on cross-examination. The witness, defendant's wife, 6 testified on direct examination that defendant had abused her and her daughter. 7 On cross-examination, defendant's lawyer asked the witness, "Do you have an opinion as to whether it would be better for [defendant's and witness's daughter] if her father lived in prison for the rest of his life without possibility of parole or died?" The state objected to the question as irrelevant and calling for speculation. The trial court excused the jury to hear argument by the parties on the state's objection. Defendant made three offers of proof to show why he believed that the information sought by the question was relevant.

The first offer of proof, taking place between defendant's lawyer and the witness, went as follows:

"Q: Now, do you have an opinion as to what your desire is for [your daughter]--[she] is nine to date; right?

"A: Yes.

"Q: What is your opinion about what is best for [your daughter]?

"A: I think to know that her dad was executed by the State would be destructive to her.

"Q: In what way?

"A: Well, emotional. I'm sure she would feel responsible somehow. It would not be good for her. I mean, she knows he's going to be in there the rest of his life, and that's, you know, that's a better story than they killed him.

" * * * * *

"Q: If--do you have any thoughts, with looking at other death sentences that have been carried out, about what you feel [your daughter's] age would likely be at the time her father was actually executed?

"A: She'll be very aware. She'll understand everything. I mean, she'll be a teenager then. You can't hide it. You can't you know, sugar coat it. You can't make it anything but what it will be.

" * * * * *

"Q: Can you say anything else about what you feel that the effect of executing her father would have on [your daughter]?

"A: How can you put into words what--

"Q: I realize how difficult it is.

"A: I know. I know, 'cause she's just a child now. She's got--I'm not so sure that she's aware of how, I don't know, how--I don't know what the word is I'm--what type of crime that was committed already, you know. And how just, I don't know, deep it is, I guess. I don't know. It was easy for her probably to block some out and ignore, you know, the sharp edges of it. But when it's brought all back to her, you know, it's just--and then she'll realize even more that, you know, just something that was so bad that, you know, they took his life for it, too. And, you know, that's pretty--that's pretty serious punishment.

"You know, it's just not going to be good for her at all. I mean, she knows that he's going to be in prison the rest of his life. She'll never hug him. She knows he's going to grow old and gray and die. But she doesn't know they're going to kill him."

Defendant also read into the record a transcript from the first penalty-phase proceeding in which defendant's lawyer asked the witness whether she would allow her daughter to visit defendant in jail. The witness responded:

"M-m-m, in time when [my daughter] can fully accept and everything for what everything is worth and its face value is, if she really would want to see her dad, I would do what she wanted to do for herself, you know. If she wanted to go look at him just to see him, to maybe to get a feeling if she hated him, or what she really felt. Whatever she wanted I'll go do with her, because she's got to sort out her feelings, too. She's got the right. She's the person."

In the present proceeding, the witness testified that she would answer the question the same way that she did at the first proceeding.

Defendant's final offer of proof, taking place between defendant's lawyer and the witness, went as follows:

"Q: Is there something about Dallas Ray Stevens and the Dallas Ray Stevens that you've known over the years when you were married to him and lived with him, that you feel that his character is such that your daughter should be able to talk to him about such things.?

"A: I really don't understand what you're saying. I--

"Q: Okay. Go ahead. You were going to ask--

"A: I just--I don't understand your question actually.

"Q: All right. What I'm saying, is there something about Dallas Ray Stevens, his character and how he associated with and worked with his daughter that you feel that she should be given an opportunity to see if she wants to rekindle that condition, because of what he was in the past?

"A: I believe that when she's able to understand everything about the whole situation, you know, the darkest and the lightest parts of it, if she can--you know, she's got to understand the whole picture as it is--to be--you know, and then it--from there, it's her choice, you know. But if she's old enough to understand clearly and, you know, not have any false pictures or cover ups or, you know, in her mind.

"Q: So sometime when she can understand the pros and the con, namely the love that she had for her father in the early years and the hatred that she might have for him because he killed her cousin; is that what you're saying?

"A: Yes. You know, 'cause I feel that she's probably got some blocks on it now that block out the ugliest points and what not. But when these come to light to where she understands everything. I don't know, she's old enough to handle it and understand it, I'm sure she's still going to, you know, want to see him for maybe some reason or another.

"Q: And that's because of his early years with him [sic]?

"A: He is her father."

The trial court sustained the state's objection to defendant's question on the ground that the evidence sought by the question was irrelevant. The court stated: "I don't find that the mother's belief about what's in the best interest of the child would relate in any way to the defendant's background or character."

Defendant argues that the trial court erred, both as a matter of statutory law and as a matter of constitutional law, in refusing to admit evidence of how defendant's "daughter may feel about him and what might be best for her in terms of his punishment." Defendant argues that evidence of the potential effect of his execution on his daughter is relevant to the "fourth question" provided in ORS 163.150 and required by the Eighth Amendment to the Constitution of the United States.

Before reaching defendant's constitutional claim, we first consider defendant's statutory argument. See State v. Rodriguez, 317 Or. 27, 31, 854 P.2d 399 (1993) (applying that methodology). ORS 163.150(1)(a) provides that, in a capital penalty-phase proceeding, "evidence may be presented as to any matter that the court deems relevant to sentence." Defendant argues that the trial court erred in excluding his wife's testimony about the possible effect of his execution upon his daughter because that evidence was relevant to the statutory fourth question: "Whether the defendant should receive a death sentence." ORS 163.150(1)(b)(D). The statute further provides:

"In determining the issue in [the fourth question], the court shall instruct the jury to answer the question 'no' if one or more of the jurors find there is any aspect of the defendant's character or background, or any circumstances of the offense, that one or more of the jurors believe would justify a sentence less than death." ORS 163.150(1)(c)(B).

The state argues that, because the potentially harmful effect of defendant's execution on his daughter does not reflect upon defendant's character or background or upon any circumstances of the offense, the evidence is not relevant to the fourth question, and the trial court was correct in excluding it.

The standard of relevance set forth in OEC 401 applies in penalty-phase proceedings. See, e.g., State v. Moen, 309 Or. 45, 73, 786 P.2d 111 (1990) (using standard of relevance...

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