State v. Wagner

CourtSupreme Court of Oregon
Citation305 Or. 115,752 P.2d 1136
PartiesSTATE of Oregon, Respondent, v. Jeffrey Scott WAGNER, Appellant. TC 85061212; SC S32635.
Decision Date26 February 1988

Jonathan H. Fussner, Asst. Atty. Gen., argued the cause for respondent. With him on the brief were Dave Frohnmayer, Atty. Gen., Virginia L. Linder, Sol. Gen., and Thomas H. Denney, Terry Ann Leggert and Rives Kistler, Asst. Attys. Gen., Salem.

[305 Or. 116-C] Richard A. Cremer, Roseburg, filed an amici curiae brief on behalf of American Civ. Liberties Union of Oregon and Oregon Crim. Defense Lawyers Ass'n. With him on the brief were Robert C. Homan, Michael V. Phillips and William L. Tufts, Eugene.

[305 Or. 117] LENT, Justice.

This is the first case to reach this court under ORS 163.150(6), 1 which provides:

"The judgment of conviction [of aggravated murder] and sentence of death shall be subject to automatic and direct review by the Supreme Court. The review by the Supreme Court shall have priority over all other cases, and shall be heard in accordance with rules promulgated by the Supreme Court." 2

Defendant was charged with aggravated murder in the following indictment:

"The above-named defendant(s) is (are) accused by the Grand Jury of Linn County, State of Oregon, by this Indictment of the Offense of Aggravated Murder,

"The said defendant(s) did, in Linn County, State of Oregon, between June 26, 1985, and June 27, 1985, unlawfully and intentionally cause the death of another human being, to-wit: Jeri A. Koenig, a witness in a criminal proceeding, by the strangulation and hitting of Jeri A. Koenig about her head and neck, said murder being related to the performance of Jeri A. Koenig's official duties in the justice system, contrary to the Statutes in such cases made and provided, and against the peace and dignity of the State of Oregon."

ORS 163.095 defines aggravated murder as follows:

"As used in ORS 163.105 and this section, 'aggravated murder' means murder as defined in ORS 163.115 which is committed under, or accompanied by, any of the following circumstances:

" * * *

[305 Or. 118] "(2)(a) The victim was one of the following and the murder was related to the performance of the victim's official duties in the justice system:

" * * *

"(E) A juror or witness in a criminal proceeding[.]" 3


The indictment was returned on July 3, 1985, and defendant appeared for arraignment before the court on July 10, 1985, with appointed counsel. He was granted until July 22 to enter a plea. He appeared with counsel on that date and entered a plea of not guilty, reserving the right until September 1 to demur and enter a defense

of mental disease. Through counsel defendant did demur to the indictment challenging the validity of ORS 163.105 4 under various provisions of the Constitution of the United States and of the Constitution of Oregon. On January 2, 1986, the trial court overruled the demurrer

About one week later defendant personally moved the court for an order

"allowing me to represent myself in the above-entitled case. It is my desire that I be the person primarily responsible for conducting my own defense, including jury selection, opening statements, direct and cross-examination of witnesses, and closing argument."

Defendant also moved that his then-appointed counsel and another lawyer be allowed to serve as

"co-counsels for the purpose of answering questions which I may have regarding legal issues, as well as for the purpose of obtaining for me discovery materials necessary for my defense." (Emphasis added.)

On January 14 the trial court heard the motion. Defendant testified to his desire and reasons for wanting to represent himself. The trial court then ruled that it would [305 Or. 119] appoint another lawyer to confer with defendant about his decision to represent himself and would rule on the motion after that had occurred. On January 17 defendant, in open court and after conferring with another appointed lawyer, repeated his desire to proceed pro se. The court then ruled that it would allow him to do so. The trial court file contains no order allowing defendant to represent himself but does contain an order appointing a second lawyer

"to assist Jeffrey Scott Wagner in his own defense. Mr. McHill is to provide advice and counsel to the defendant but is not to act as Mr. Wagner's attorney."

That defendant's motion to act as his own counsel was allowed also appears from the fact that he personally filed at least 12 motions, the great majority of which were allowed.

On February 10, which was the day that trial was to commence, defendant informed the court that he desired to withdraw his plea of not guilty and to enter a plea of guilty to the charge of aggravated murder. A written petition to do so had already been prepared. 5 The court then informed defendant that the court would have to ascertain that defendant understood what he was doing and the rights that he would be foregoing. At this point defendant, in open court and in the presence of his two lawyer advisers, signed the prepared petition. The court then pointed out that although the printed form referred to "talking with your lawyer," defendant was not represented. The court asked defendant if he had discussed the matter "in detail" with his advisers, and defendant answered that he had done so.

The court then explained to defendant the various constitutional rights that he would forego by pleading guilty and went on to explain the sentencing proceeding that would occur before a jury. Having satisfied itself that defendant understood what he was doing and that he was acting voluntarily and knowingly, the court once more asked defendant if he still wished to plead guilty, and defendant stated that he did. The court then stated:

"I do plan to wait until tomorrow morning to provide Mr. Wagner the opportunity to fully review this matter again, so [305 Or. 120] that in the event he should change his mind, he would still have that opportunity. So, I am not going to accept his plea until tomorrow morning."

On February 11, in open court, the judge ascertained that defendant had had ample opportunity to consult with "the individuals you wished to consult with regarding your plea" and that defendant still desired to

plead guilty. Once more the court warned defendant that the penalty would be either death or life imprisonment. The prosecutor then stated to the court what evidence the state would offer to prove the charge. The statement covers 18 pages of transcript. After again inquiring of defendant whether he still wanted to plead guilty and possibly be sentenced to death and receiving an answer in the affirmative, the court accepted the plea of guilty

ORS 163.150(1) provides:

"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. The proceeding shall be conducted in the trial court before the trial jury as soon as practicable. If the defendant has pleaded guilty, the sentencing proceeding shall be conducted before a jury impaneled for that purpose. 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. The court shall instruct the jury that all evidence previously offered and received may be considered for purposes of the sentencing hearing. This subsection shall not be construed to authorize the introduction of any evidence secured in violation of the Constitution of the United States or of the State of Oregon. The state and the defendant or the counsel of the defendant shall be permitted to present arguments for or against a sentence of death." (Emphasis added.)

Pursuant thereto the court and parties proceeded to the selection of a jury. Defendant participated fully in jury selection. Jury voir dire occupied February 11, 12, 13, 14, 18 and 19, and the transcript of voir dire covers six volumes of transcript, being some 1,146 pages. Every juror was askedabout the juror's attitude or belief concerning the death penalty and if the juror would be willing to impose the death penalty in this case. A jury was impaneled and sworn.

[305 Or. 121] The state's case in chief took all of February 20, 21, 24 and 25. On February 26, after the state had rested, defendant waived his right to make an opening statement and, except for evidence developed on cross-examination, presented no evidence and rested. Deputy District Attorney Engdall made the state's opening argument, and after defendant had argued, Deputy District Attorney Houchin made the state's closing argument. The court instructed the jury.

A form of verdict required by ORS 163.150(2) was submitted to the jury. The statute provides:

"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. In determining this issue, the court shall instruct the jury to consider any mitigating circumstances offered in evidence, including, but not limited to, the defendant's age, the extent and severity of the defendant's prior criminal conduct and the extent of the mental and emotional pressure under which the defendant was acting at the time the offense was committed; and

"(c) If raised by the evidence, whether the conduct of the defendant in killing the deceased was unreasonable in response to the...

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