State v. Williams

• Decision Date: 08 March 1996
• Parties: STATE of Oregon, Respondent, v. Jeffrey Ray WILLIAMS, Appellant. CC 88CR1815; SC S40613.
• Court: Oregon Supreme Court

Page 364

912 P.2d 364

322 Or. 620

STATE of Oregon, Respondent, v. Jeffrey Ray WILLIAMS, Appellant.

CC 88CR1815; SC S40613.

Supreme Court of Oregon,

In Banc.

Argued and Submitted Sept. 7, 1995.

Decided March 8, 1996.

On automatic and direct review of the sentence of death entered by the Circuit Court for Coos County; Richard L. Barron, Judge.

John P. Daugirda, of Roost & Daugirda, Eugene, argued the cause and filed the briefs for Appellant.

Janet A. Metcalf, Assistant Attorney General, Salem, argued the cause for Respondent. With her on the briefs were Theodore R. Kulongoski, Attorney General, and Virginia L. Linder, Solicitor General.

VAN HOOMISSEN, Justice.

This case comes before us on automatic and direct review of defendant's sentences of death based on two convictions of aggravated murder. ORS 163.150(1)(g). For the reasons that follow, we affirm defendant's sentences of death.

This is the second time that this matter has come before this court. In 1991, a jury found defendant guilty of two counts of aggravated murder, both committed in 1988, and he was sentenced to death. The facts regarding the two aggravated murders of which defendant was convicted are set forth in State v. Williams, 313 Or. 19, 828 P.2d 1006, cert. den. 506 U.S. 858, 113 S.Ct. 171, 121 L.Ed.2d 118 (1992) (Williams I ), and State v. Simonsen, 310 Or. 412, 798 P.2d 241 (1990), and need not be repeated here.

In Williams I, this court reviewed defendant's assignments of error regarding the guilt phase of his trial and found no reversible error. Williams I, 313 Or. at 22-42, 828 P.2d 1006. However, in the light of State v. Wagner, 309 Or. 5, 786 P.2d 93, cert. den. 498 U.S. 879, 111 S.Ct. 212, 112 L.Ed.2d 171 (1990) (concerning admissibility of mitigating evidence in penalty phase), this court vacated defendant's sentences of death and remanded the case for a new penalty phase proceeding. Williams I, 313 Or. at 42, 828 P.2d 1006.

In the new penalty phase proceeding in 1993, the jury answered "yes" to the four questions set forth in ORS 163.150(1)(b). ¹ Thereafter, defendant again was sentenced to death on two counts of aggravated murder. He now asks this court to vacate his death sentences. Defendant makes four assignments of error, which we will consider seriatim.

I.

Defendant first contends that the trial court erred in prohibiting defense counsel from arguing to the jury that the court could impose two consecutive life sentences if the jury returned life sentence verdicts. ² Defendant argues that the trial court lacked authority In essence, the state argued to the jury during closing argument that defendant should receive the death penalty, because he would commit criminal acts of violence that would constitute a continuing threat to society both inside and outside prison. Defense counsel argued that defendant presented no threat to society inside prison and, therefore, that his life should be spared. Defense counsel also argued that, for all practical purposes, defendant would never be released from prison if the jury spared his life. ³ Defendant relies on the current version of ORS 163.150(1)(A), ARTICLE I⁴, section 11, of the Oregon Constitution, ⁵ and several provisions of the United States Constitution, including the Due Process Clause of the Fourteenth Amendment. ⁶

to limit defense counsel's argument concerning consecutive life sentences and that the court's statutory authority to impose consecutive life sentences was relevant to rebut the state's "future dangerousness" argument and relevant to the jury's determination of whether to impose a death sentence. Defendant theorizes that informing the jury of the possibility of consecutive life sentences would benefit defendant by increasing the likelihood that the jury would impose a sentence less than death.

The state argues that defendant has no statutory or constitutional right to usurp a trial court's sentencing role or to argue to a jury about the speculative possibility that he might receive consecutive life sentences if the jury returned life sentences.

In this case, two victims were murdered. At the conclusion of the state's initial penalty phase closing argument, the trial court memorialized a discussion with counsel, held earlier off the record, ⁷ during which the court denied defense counsels' request that they be permitted to argue that consecutive life sentences might be imposed. ⁸ The trial court explained:

"THE COURT: [T]here were two other things that * * * I wanted to put on the record. One was there's an instruction that I'm giving that explains what life means, the 30 years with a 20-year, and I said I was going to give that for two reasons: One, the opening statement mentioned it, and I believe [defense counsel] will be mentioning that in closing argument. But the opening statement mentioned the 30 years.

"The other thing is State v. Douglas [310 Or. 438, 800 P.2d 288 (1990) ] said that generally [sic ] shouldn't be given unless there's some evidence in the record, such as an expert who would say he wouldn't be dangerous in prison, but he would be in society. And there were several people " * * * * *

that testified in the case that Mr. Williams was not dangerous in prison. And Dr. Wise testified that he didn't think he'd be dangerous in prison, but he should be in a structured environment, words to that effect. So I felt it was there. Based on those reasons, I'm explaining what that is.

"They talked about arguing concurrent or consecutive sentences, and I said that was really up to the Court whether the sentences, if they came back with life, would be concurrent or consecutive, and I didn't think that should be gotten into because one, that's the Court's authority. In fact, the jury might view, if they found out if the defense was able to argue they'd be consecutive sentences, the State would argue there was concurrent sentences, and, frankly, that might not be the best argument in front of a jury who may not appreciate the fact that the Court would have authority to effect the sentences in such a way by making them concurrent or consecutive. But, in any event, that's within the Court's power, not within the jury's, so I didn't think it would be wise to get that [sic ]. I did tell the defense they could certainly argue there's going to be two sentences in this case, because there are two victims.

"I wanted to add those for the record, because we had discussed those. And if anybody has any additions to that, they should make those now. Okay? Nobody does. We will--nobody has any additions or corrections to that * * * [.]" ⁹

During his argument, defense counsel told the jury that two sentences would be imposed (either two life sentences or two death sentences), because there were two victims. Defense counsel then argued in part:

"You can infer from [defendant's positive behavioral modification while incarcerated] that Jeff Williams in jail is much less of a problem than Jeff Williams on the street. And jail is where he is going to be. A sentence in this case is either a death sentence by lethal injection, twice, I suppose, or life imprisonment. And you heard what the life imprisonment was. It's 30 years minimum without consideration for parole, without consideration for work release, without consideration for any type of temporary leave or employment in a forestry or work camp.

"It means inside those cold, gray walls. He'll go through that door, if you sentence him for life imprisonment, he goes through that door, he goes from here to Salem, and he's behind those walls. You drive up the freeway, you can see him from the freeway. You can see the towers and the guard over there on the west side of the freeway in Salem. It's a grim place. Any prison is a grim place. That's where he goes." (Emphasis added.)

Defense counsel further argued:

"The two life sentences that you have in your power to give this man mean that he won't be on the streets of the State of Oregon or anywhere else. The evidence there, the evidence you heard in the witness stand should tell you that this guy in prison has demonstrated in the last four and half years that he knows what rules are, that he can follow the rules. Maybe he does it because it's in his own best interest, but that's what prison encourages. You've got to demonstrate to people that it's in their own best interest to follow the rules so that they don't get in trouble. He can do that. He's not dangerous in the setting that he's going to be in. We have to recognize reality. The State began an argument at one point by saying it's the whole picture. But recognize reality, this guy's future is in prison. He's not a danger to the rest of us. He's not a danger to the prison society where he'll really be.

"And on the fourth question [whether defendant should receive a death sentence] After a brief rebuttal argument, during which the prosecutor did not mention the matter of consecutive or concurrent sentencing, the trial court instructed the jury:

the answer to that one should be no. He's demonstrated in the last four and a half years that he has the capacity to conform himself to the rules of the institution, make some progress. We had one witness testify that he's been acting as a counselor to inmates. There may be a limited opportunity for that in his situation, but he's done it." (Emphasis added.)

"Life in prison means that the Court shall order the Defendant to be confined for a minimum of 30 years without possibility of parole, release on work release, or any form of temporary leave or employment at a forest or work camp. After 20 years from the date the Court imposes the 30-year minimum, the Defendant would be able to petition the State Board of Parole for an order altering his sentence to life imprisonment with the possibility of parole or work release. The Defendant would have the burden of convincing all five members of the State Board of Parole that he's likely to be rehabilitated within a...