State v. Wagner

Decision Date11 January 1990
Citation786 P.2d 93,309 Or. 5
Parties, 58 USLW 2491 STATE of Oregon, Respondent, v. Jeffrey Scott WAGNER, Appellant. CC 85061212; SC S32635.
CourtOregon Supreme Court

Stephen J. Williams, Deputy Public Defender, argued the cause for appellant. With him on memoranda in response to the court's questions were Sally L. Avera, Acting Public Defender, and John P. Daugirda, Deputy Public Defender, Salem.

Timothy A. Sylwester, Asst. Atty. Gen., Salem, argued the cause for respondent. With him on the memorandum in response to the court's questions were Dave Frohnmayer, Atty. Gen., Virginia L. Linder, Sol. Gen., and Jonathan H. Fussner, Rives Kistler, and Brenda J Peterson, Asst. Attys. Gen., Salem.

PETERSON, Chief Justice.

In an earlier appeal of this aggravated murder case, this court affirmed the defendant's death sentence. State v. Wagner, 305 Or. 115, 752 P.2d 1136 (1988). The defendant petitioned to the Supreme Court of the United States for a writ of certiorari. The Supreme Court vacated the judgment and remanded the case to this court "for further consideration in light of Penry v. Lynaugh, 492 U.S. 302, 109 S.Ct. 2934, 106 L.Ed.2d 256 (1989)." Wagner v. Oregon, 492 U.S. 914, 109 S.Ct. 3235, 106 L.Ed.2d 583 (1989).

As directed by the Supreme Court, we have reconsidered our earlier decision in light of Penry v. Lynaugh, 492 U.S. 302, 109 S.Ct. 2934, 106 L.Ed.2d 256 (1989). We are compelled to vacate the judgment that affirmed the sentence of death. We remand the case to the trial court for retrial of the penalty phase only.

Penry concerns the constitutional requirement that a sentencing jury be given an effective opportunity to consider all aspects of a defendant's life and crime in fixing the appropriate sentence. The first question before us is whether ORS 163.150 (1987 Replacement Part) (in effect for defendant's trial and later amended as of July 24, 1989) permits the trial judge to submit to the sentencing jury a so-called "fourth question," i.e., a query whether the death penalty is appropriate for this defendant, considering all aspects of his life and crime? 1 This is strictly a matter of statutory interpretation. The trial court in this case did not submit a fourth question to the sentencing jury.

Defendants in other death penalty cases before this court have argued that ORS 163.150 both permits a fourth question and is unconstitutional for not permitting one. The state contends, somewhat contrary to its position in State v. Wagner, supra, that the statute permits a fourth question if constitutionally required in an individual case. The point here is not to criticize the parties for their tactical choices in a matter of great seriousness, rather it is to note that both sides have, at one time or another, contended that ORS 163.150 permits a fourth question.

If the statute does not permit submission of such an issue, then the statute prior to its amendment is arguably facially unconstitutional and defendants sentenced to death under the statute arguably could not be subject to death on resentencing. The starting point for the statutory analysis is the language of the statute and this court's prior interpretation of the statute in Wagner.

ORS 163.105(1) provides that a defendant convicted of aggravated murder "shall be sentenced to death or life imprisonment pursuant to ORS 163.150." ORS 163.150 pertinently provides:

"(1)(a) Upon a finding that the defendant is guilty of aggravated murder, the court, except as otherwise provided in subsection (2) of this section, 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; * * *. The state and the defendant or the counsel of the defendant shall be permitted to present arguments for or against a sentence of 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. 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 provocation, if any, by the deceased.

"(c) The state must prove each issue submitted beyond a reasonable doubt, and the jury shall return a special verdict of 'yes' or 'no' on each issue considered.

"(d) The court shall charge the jury that it may not answer any issue 'yes' unless it agrees unanimously.

"(e) If the jury returns an affirmative finding on each issue considered under this section, the trial judge shall sentence the defendant to death. If the jury returns a negative finding on any issue submitted under this section, the trial judge shall sentence the defendant to imprisonment for life in the custody of the Department of Corrections as provided in ORS 163.105." (Emphasis added.)

On its face, the statute neither precludes nor permits a general mitigation question. Either rendering, then, of the statute can find support, but we will not allow a question of such importance to turn on simplistic application of maxims of statutory interpretation (e.g., the expression of one thing, i.e., the listed issues, is the exclusion of another); uncritical reliance on the general legislative intent to enact a constitutionally valid death penalty; or resolution of a battle between the injunction to interpret a statute constitutionally if possible, see, e.g., Cooper v. Eugene Sch. Dist. No. 4J, 301 Or. 358, 378, 723 P.2d 298 (1986), appeal dismissed 480 U.S. 942, 107 S.Ct. 1597, 94 L.Ed.2d 784 (1987) (before invalidating a facially overbroad statute, the court is obliged to try to interpret the statute constitutionally, consistent with its purpose), or the general direction not to add to the terms of a statute, see ORS 174.010. These may be useful tools for decision, but they do not substitute for specific analysis in the first instance.


ORS 163.150(1)(b) provides that "the court shall submit the following issues to the jury[.]" The statute then lists one issue, deliberateness; one issue with a mandatory instruction on mitigation, future dangerousness; and one contingent issue, provocation.

The statute does not state that these two issues and one contingent issue are the only issues that may be submitted to the jury. Indeed, although the statute only expressly provides for a mitigation instruction on the second issue, future dangerousness, this court nonetheless has interpreted the statute to require the admission of mitigating evidence on all three issues and to allow for mitigation instructions on all three issues. Wagner, 305 Or. at 156-57, 161, 167, 752 P.2d 1136.

The statute states that the prosecution must prove each issue submitted beyond a reasonable doubt and requires the jury to respond "yes" or "no" on each issue considered, with unanimity required for "yes" (death). ORS 163.150(1)(c) and 163.150(1)(d). ORS 163.150(1)(e) is important in the analysis and it is a problem for any contention that the statute permits a general mitigation question. It provides:

"If the jury returns an affirmative finding on each issue considered under this section, the trial judge shall sentence the defendant to death. If the jury returns a negative finding on any issue submitted under this section, the trial judge shall sentence the defendant to imprisonment for life * * *."

This provision is clearly the closest the statute comes to precluding a fourth question, stating as it does that death shall be the sentence if the jury is unanimously affirmative "on each issue considered under this section." The term "this section" clearly does not refer to subsection (1)(e), which does not otherwise describe the issues or deal with their submission. Just as clearly, it does not by its terms refer exclusively to subsection (1)(b)--the list of issues, instruction, and contingent issue--both because it does not do so expressly and because "this section " cannot by its terms be read to refer exclusively to another subsection. "[T]his section" is, moreover, implicitly defined in subsection (1)(a) of ORS 163.150, which speaks of "subsection (2) of this section," meaning subsection (2) of ORS 163.150.

Subsection (1)(e), by its reference to issues "considered under this section [i.e., ORS 163.150]," thus clearly includes those issues submitted pursuant to subsection (1)(b), but it does not preclude the submission and consideration of other issues. Indeed, Wagner recognizes that ORS 163.150(1) must permit jury consideration of " 'any aspect of the defendant's character and record or any circumstances of his offense as an independently mitigating factor.' " See State v. Wagner, 305 Or. at 160, 752 P.2d 1136. (Emphasis added.)

Justice Linde's dissent in this case relies very heavily on the neutral Committee Explanation printed in the 1984 Voters' Pamphlet for the proposition that only if the jury answers...

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