State v. Agee

No. 51 December 3, 2015 325

IN THE SUPREME COURT OF THE

STATE OF OREGON

STATE OF OREGON,

Plaintiff-Respondent,

v.

ISACC CREED AGEE,

Defendant-Appellant.

(CC 09C41224; SC S059530)

En Banc

On automatic and direct review of the judgment of con-

viction and sentence of death imposed by Marion County

Circuit Court.

Pamela L. Abernethy, Judge.

Argued and submitted on April 22, 2015.

Ryan T. O’Connor, O’Connor Weber LLP, Portland,

argued the cause and filed the briefs for petitioner. With him

on the briefs was Kenneth A. Kreuscher.

Timothy A. Sylwester, Attorney General, Salem, argued

the cause and filed the brief for respondent. With him on the

brief were Ellen F. Rosenblum, Attorney General, Anna M.

Joyce, Solicitor General, and Susan G. Howe and Michael S.

Shin, Assistant Attorneys General.

BALMER, C. J.

The judgment of conviction is affirmed. The sentence of

death is vacated, and the case is remanded to the circuit

court for further proceedings.

Case Summary: Defendant, an inmate as Oregon State Penitentiary, together

with another inmate, killed a third inmate; he was convicted of aggravated mur-

der and sentenced to death. On automatic and direct review, defendant sought

reversal of his conviction and sentence of death. Held: (1) The trial court erred

in permitting the prosecutor extensively to cross-examine a key defense witness

outside the presence of the jury, but that error was harmless; (2) the trial court

erred at a pretrial hearing to determine defendant’s eligibility for the death pen-

alty when it used an inappropriate standard for determining that defendant had

not met his burden of proving intellectual disability, and that that error required

remand for a new hearing to determine defendant’s eligibility for the death pen-

alty; (3) the trial court erred when it refused to permit the defendant’s experts

326 State v. Agee

to testify during the penalty phase proceeding that they had diagnosed him as

intellectually disabled, and that that error was not harmless; (4) the trial court

did not err during the penalty phase when it declined to instruct the jury that it

must determine whether defendant was intellectually disabled; and (5) the trial

court erred during the penalty phase when it excluded evidence that defendant’s

co-defendant received a life sentence for his role in the victim’s murder, and that

error was not harmless. The judgment of conviction is affirmed.

The sentence of death is vacated, and the case is remanded to the circuit

court for further proceedings.

Cite as 358 Or 325 (2015) 327

BALMER, C. J.

This case is before us on automatic and direct review

of defendant’s judgment of conviction and sentence of death

for aggravated murder. ORS 138.012(1). For the reasons

that follow, we affirm the judgment of conviction, vacate the

sentence of death, and remand this case to the circuit court

for further proceedings.

I. BACKGROUND

We begin with an overview of relevant facts; we

describe additional facts in our discussion of defendant’s

assignments of error. Because the jury found defendant

guilty, we view the evidence presented at trial in the light

most favorable to the state. State v. Washington, 355 Or 612,

614, 330 P3d 596 (2014).

In May 2005, defendant arrived at the Oregon

State Penitentiary to begin serving a 40-year sentence for

attempted murder and other offenses. In February 2008,

defendant and his cell-mate, Davenport, entered the cell of a

third inmate, the victim, when the doors to all the cells in the

area were opened to permit the inmates to go to breakfast.

Both defendant and Davenport were wearing gloves and were

armed. Defendant had a seven-inch-long shank with a half-

inch piece of sharpened metal on the end, sheathed in the

plastic casing of a highlighter pen. Davenport was carrying a

mesh laundry bag containing an almost four-pound piece of

concrete wrapped in a stocking cap. The door to the cell closed

after about 30 seconds, locking defendant and Davenport in

the cell with the victim. Davenport began striking the victim

in the head with the concrete block. Defendant stabbed the

victim in the legs and torso 28 times with the shank.

A corrections officer heard panting and investi-

gated. He saw two inmates standing in the cell, out of breath,

and another on the ground; he yelled to another corrections

officer for help. The two corrections officers saw Davenport

standing in the back of the cell near the victim’s head and

defendant standing to the side of the cell, near the victim’s

torso and legs and next to a table in the cell. While the offi-

cers waited for other guards to arrive (to enable them safely

to open the cell door), they saw Davenport strike the victim

in the head about 20 times with the concrete block, and saw

328 State v. Agee

defendant kick the victim in the ribs and punch him in the

chest with a closed fist. Defendant walked to the cell door

and submitted to wrist restraints as Davenport continued to

strike the victim’s head with the concrete block. Davenport

also eventually submitted to restraints. Officers removed

Davenport and defendant from the cell and a nurse con-

firmed that the victim was dead. While defendant was being

escorted from the scene, a corrections officer asked him

whether he was in possession of any weapons. Defendant

responded no, he had left his weapon on the table in the

cell. The shank was later found on the table. According to

the state medical examiner, the victim died from the blows

to the head with the concrete block. The shank caused only

superficial wounds.

Defendant and Davenport were jointly charged with

aggravated murder for the intentional homicide of a prison

inmate by another inmate. ORS 163.095(2)(b) (defining

aggravated murder as murder committed when defendant

was confined in a correctional facility at time that murder

occurred). The state declared its intention to seek the death

penalty for both defendants. After Davenport provided the

state with evidence of his mental incapacity dating back to

his early teen years, the state conceded that Davenport was

“mentally retarded”1 and therefore ineligible for the death

penalty under the controlling United States Supreme Court

case, Atkins v. Virginia, 536 US 304, 321, 122 S Ct 2242,

153 L Ed 2d 335 (2002) (holding that execution of “men-

tally retarded” persons violates Eighth Amendment’s ban

on cruel and unusual punishment). Davenport subsequently

pleaded guilty and was sentenced to life in prison without

the possibility of parole.

Defendant also moved the trial court to declare him

intellectually disabled and ineligible for the death penalty,

but the state did not concede the issue as to him. Because,

as we discuss in more detail below, there are no specific

1

At the time of defendant’s trial, the terms “mental retardation” and “men-

tally retarded” were in common usage in court opinions and in the medical lit-

erature. The mental health community now agrees that the preferred clinical

terms are “intellectual disability” and “intellectually disabled.” Throughout the

remainder of this opinion, therefore, we use those terms unless we are directly

referring to a source that uses one of the now-disfavored terms.

Cite as 358 Or 325 (2015) 329

procedural or substantive guidelines in Oregon for deter-

mining when a defendant is ineligible for the death penalty

under the general holdings of Atkins, the trial court deter-

mined that it would conduct a pretrial hearing at which

defendant would have the burden of proving that he is

intellectually disabled by a preponderance of the evidence.

Defendant acceded to that procedure.2

In an April 2011 hearing, both the state and defen-

dant offered evidence from psychologists and psychiatrists

concerning defendant’s mental health and intellectual abili-

ties. The trial court found that defendant suffered from par-

tial fetal alcohol syndrome but concluded that defendant had

not established an intellectual disability that would make

him constitutionally ineligible for the death penalty. In May

2011, a jury was empanelled and, after a guilt-phase trial,

the jury found defendant guilty of aggravated murder. At

the conclusion of a further, penalty-phase proceeding under

ORS 163.150, the jury determined that defendant had acted

deliberately in committing the murders, that he posed a con-

tinuing risk to society, and that he should receive a death

sentence. ORS 163.150(1)(b)(A), (B), (D). The trial judge

then entered a sentence of death. This automatic and direct

review followed.

II.  ASSIGNMENTS OF ERROR

On review before this court, defendant raises 29

assignments of error. We have reviewed all those assign-

ments of error and conclude that many of them are not well

taken and do not merit further discussion.3 We address

defendant’s remaining assignments of error below.

2

In fact, defendant suggested that procedure in a brief to the trial court

outlining the various ways that other states have handled similar situations.

3

With respect to several of the assignments of error that we do not address—

those relating to (1) the trial court’s admission, during the guilt phase, of an

audio recording of a telephone conversation between defendant’s mother and

his incarcerated brother; (2) the trial court’s admission, during the guilt phase,

of two pieces of paper found after the murder in defendant’s prison cell among

defendant’s other property; and (3) the trial court’s imposition of a death sentence

notwithstanding defendant’s argument that the jury was not given proper accom-

plice liability instructions—we conclude either that the error was not preserved

or that the trial court did not err. The others have been answered adversely to

defendant’s position in prior decisions by this court, and, therefore, further dis-

cussion will not benefit the public, the bench, or the bar.

330 State v. Agee

We discuss five assignments of error. Only one

assignment of error concerns a ruling made during the guilt

phase; we begin there.

A.  The Trial Court’s Decision to Permit Extensive Cross-

Examination of Codefendant Outside Presence of Jury

At defendant’s trial, after the completion of jury

selection but prior to the jury being sworn, the trial court

and both parties called to the stand eight inmates for the

limited purpose of inquiring whether the inmates intended

to invoke their privileges against self-incrimination if called

as witnesses in front of the jury. One of those witnesses was

Davenport. The trial court swore in Davenport and defendant

conducted a limited examination about whether Davenport

was willing to testify about the events on the day that the

victim was killed and Davenport’s involvement with a par-

ticular prison gang.4 Defense counsel asked and received

answers to the following questions: whether Davenport

understood that he would be asked about the events sur-

rounding the murder and his involvement with the gang,

whether Davenport would testify about those things, and

whether he would invoke his Fifth Amendment privileges.

On cross-examination, after confirming that

Davenport would testify about the events of the day of

the murder, the prosecutor asked whether Davenport was

prepared to testify about what happened during the week

before the murder. Davenport initially responded that noth-

ing had happened the week before. The prosecutor then

asked Davenport if he was a “gangster.” Davenport replied

that he would not answer that question, but would testify

about his involvement in the murder and exactly what hap-

pened that day. The prosecutor told Davenport that he was

required to answer any question that was put to him and

again asked whether Davenport was a gangster. Davenport

4

Part of the defense theory was that Davenport was a member of a prison

gang and wanted to kill the victim because the gang leadership had directed that

the victim be killed. Defendant’s theory was that he went along with Davenport

because he was Davenport’s childhood friend and a “follower,” even though he

was not a member of the gang. Davenport’s testimony supported that theory:

Davenport maintained that he alone was the mastermind and executor of the

murder and that defendant was merely a spectator whom Davenport had goaded

into accompanying him into the victim’s cell.

Cite as 358 Or 325 (2015) 331

continued to refuse to answer that question, and defense

counsel began to object. The prosecutor interrupted the

defense objection to complain to the judge that, if Davenport

were not willing to answer the prosecutor’s questions,

he should not be allowed to testify at the trial at all. The

court then conducted a colloquy with Davenport in which

Davenport agreed to answer questions from both parties if

he were called as a witness. The court directed the prose-

cutor to ask again about Davenport’s gang involvement, to

“test” Davenport’s willingness to cooperate. The prosecutor

posed multiple questions about Davenport’s gang member-

ship, his gang tattoos, his relationship with various gang

members, his knowledge of the gang’s power structure, and

the role of the gang in the murder. During that questioning,

Davenport at first attempted to avoid giving direct, truthful

answers, even though the court reminded him several times

that this was a “test run” to determine if he would cooper-

ate with cross-examination. Davenport eventually began to

answer the prosecutor’s questions, although he frequently

answered, “I don’t know.” From there, the prosecutor moved

on to questions about Davenport’s relationship with defen-

dant, which Davenport answered directly.

The prosecutor then began asking Davenport spe-

cific and detailed questions about his and defendant’s actions

on the day of the murder:

“[PROSECUTOR]:  And on the 14th, you keep saying

that you’re the one that did the killing.

“[DAVENPORT]:  Yes, I did.

“[PROSECTUTOR]:  What weapons did you use?

“[DAVENPORT]:  I used a knife and a chunk of cement.

“[PROSECUTOR]:  Okay. Where was the defendant?”

Defendant objected for a second time, arguing that

Davenport had made clear that he would answer questions

about the day of the murder. The trial court overruled the

objection and allowed the prosecutor to continue examining

Davenport. The prosecutor resumed asking Davenport ques-

tions about his and defendant’s actions during the murder,

including asking leading questions to draw out a moment-

by-moment description of defendant’s and Davenport’s

332 State v. Agee

actions and statements leading up to and during the assault

on the victim, and including eliciting testimony about how

Davenport coerced defendant into entering the victim’s cell.

Defense counsel raised a third objection, noting that

the purpose of the hearing was limited to an inquiry about

whether the inmate witnesses would be invoking their Fifth

Amendment right not to testify. Defendant conceded that

the prosecutor had had reason to ensure that Davenport

would testify about his gang involvement and who ordered

the murder, but he argued that this was not an opportunity

for a pretrial deposition about the murder; Davenport had

no arguable Fifth Amendment right not to testify about the

murder itself and, therefore, the prosecutor should not be

allowed effectively to depose him on that topic at that hear-

ing. The prosecutor responded that “[t]his is not about him

taking the Fifth.” Rather, the prosecutor argued, the issue

was whether Davenport would answer the state’s questions.

The prosecutor argued that he should be permitted to deter-

mine whether Davenport would “talk through the incident

in its entirety,” and, if not, then his testimony should not

be allowed. The trial court overruled defendant’s objection

and directed the prosecutor to continue, which he did, in the

same vein as earlier, questioning Davenport in detail about

his and defendant’s roles in the murder, his and defendant’s

statements during the murder, and what information defen-

dant would have known prior to the murder.

Defendant argues in this court that, generally, trial

courts do not have authority to compel a criminal witness

to be deposed or give pretrial testimony outside the pres-

ence of the jury. See State ex rel O’Leary v. Lowe, 307 Or

395, 401-02, 769 P2d 188 (1989) (issuing writ of mandamus

directing trial court to withdraw order requiring prosecu-

tor to produce some of state’s criminal witnesses for pretrial

deposition by defendant, holding that “[t]here is no statu-

tory right in Oregon for a criminal defendant to depose a

potential state’s witness”). Although O’Leary involved a

defendant’s effort to compel pretrial testimony from a state

witness, defendant argues that the same rule would apply

to the prosecution. Defendant acknowledges the trial court’s

authority to permit examination of a witness outside the

presence of the jury for purposes of trial management, but

Cite as 358 Or 325 (2015) 333

he argues that, under O’Leary, trial courts have no author-

ity to compel a defendant or a witness in a criminal trial to

submit to pretrial depositions. Defendant contends that the

holding in O’Leary is consistent with ORS 136.420, which

precludes (with two exceptions not relevant here) any form

of “testimony,” including depositions, in a criminal case,

other than oral testimony in the presence of the court and

jury.5 Defendant argues that the pretrial examination and

deposition of Davenport allowed the prosecution to conduct

essentially full discovery of Davenport, under oath and out-

side the presence of the jury, and that it is hard to overstate

the utility of that sort of prior opportunity to question a cen-

tral defense witness.

Trial courts have explicit and inherent authority to

control courtroom proceedings. See State v. Mains, 295 Or

640, 656, 669 P2d 1112 (1983) (so stating); ORS 1.010 (every

court has power to regulate proceedings before it and to con-

trol, in furtherance of justice, conduct of persons connected

with judicial proceedings); OEC 611(1) (court shall exercise

reasonable control over presentation of evidence); see also

ORS 135.037(3) (providing for omnibus pretrial hearings

where trial court “may also consider any matters that will

facilitate trial by avoiding unnecessary proof or by simpli-

fying the issues to be tried, or that are otherwise appropri-

ate under the circumstances to facilitate disposition of the

proceeding”). Moreover, a trial court has broad discretion

when exercising its authority to control the presentation of

evidence.6 State v. Cox, 337 Or 477, 495, 98 P3d 1103 (2004)

(trial court had authority to strike from record entirety of

5

ORS 136.420 provides:

“In a criminal action, the testimony of a witness shall be given orally in

the presence of the court and jury, except:

“(1)  In the case of a witness whose testimony is taken by deposition by

order of the court in pursuance of the consent of the parties, as provided in

ORS 136.080 to 136.100 [providing that trial court may require, as precondi-

tion for granting postponement of trial, requesting party’s consent to deposi-

tions of its witnesses]; or

“(2) As provided in ORS 131.045 [permitting court appearances by

simultaneous electronic transmission].”

6

Exercising control over the presentation of evidence helps to reduce verbal

conflicts between counsel, to eliminate “speaking” objections, to prevent abuse

or harassment of witnesses during questioning, to restrict closing arguments to

legal limits, and to avert error. Mains, 295 Or at 656.

334 State v. Agee

defendant’s trial testimony after he refused to answer three

questions posed to him by the state on cross-examination);

see also State v. Rogers, 330 Or 282, 302, 4 P3d 1261 (2000)

(Rogers I) (trial court has authority to pre-approve contents

of aggravated murder defendant’s allocution statement).

However, although the trial court’s discretion is

broad, it is limited by the rules governing the conduct of the

trial. In a criminal prosecution, the trial court may not per-

mit either party to conduct pretrial examination of witnesses

except in certain limited circumstances. For example, the

statutes governing pretrial discovery in criminal matters do

not permit either the defendant or the state to take pretrial

depositions. ORS 135.805 to 135.873 (setting out rules for

pretrial discovery in criminal prosecutions). Moreover, ORS

136.420 provides that, in a criminal trial, after the jury is

sworn, all testimony “shall be given orally in the presence

of the court and jury,” except in certain circumstances not

relevant here. This court has held that that statute “ ‘was

intended to make the general rule, concerning the taking

of depositions, inapplicable to criminal trials.’ ” State v.

Lamphere, 233 Or 330, 332-33, 378 P2d 706 (1963) (quoting

State v. Walton, 53 Or 557, 565, 99 P 431 (1909)) (referring

to virtually identically worded earlier version of statute);

State ex rel Gladden v. Lonergan, 201 Or 163, 181, 269 P2d

491 (1954) (to same effect). In this case, as we shall explain,

we conclude that the trial court, in permitting the prose-

cutor to question Davenport extensively about the events

surrounding the murder, exceeded its discretion to manage

courtroom proceedings, and, instead, effectively permitted

an unlawful pretrial deposition of a defense witness.

As noted, after the jury was selected in this case

but before it was sworn, the trial court conducted a hearing,

the stated purpose of which was to determine whether cer-

tain witnesses would testify at trial. It is indisputable that

it was within the trial court’s discretion to determine, at

that point, whether the witnesses would testify, including

whether the witnesses would respond to questions from both

defense counsel and the prosecutor, and to do so by permit-

ting the prosecutor to question the witnesses. Although the

trial court later would have the option of excluding some or

all of a witness’s testimony if the witness refused to answer

Cite as 358 Or 325 (2015) 335

the prosecutor’s questions at trial, Cox, 337 Or at 493, the

court reasonably could have concluded that permitting the

prosecutor to question the witness at the hearing to test the

witness’s compliance was preferable to that course of action.

However, with respect to Davenport, the trial court went

well beyond simply determining whether the witness would

testify. Before the prosecutor started to question Davenport

about the events surrounding the murder, Davenport had

stated under oath that he would testify about those events,

and he had amply demonstrated that he would answer the

prosecutor’s questions.

It is true that Davenport initially resisted answer-

ing questions about his relationship with a certain prison

gang, but he did eventually answer all of the prosecutor’s

questions on that topic, and he had appropriately answered

questions about his relationship with defendant. At the

point when defense counsel interposed his second objection

to the prosecutor’s questions, Davenport also had answered

several questions about the murder itself. At that point,

requiring Davenport to answer questions from the prose-

cutor that essentially revealed the entirety of Davenport’s

substantive testimony about defendant’s participation in

the murder exceeded the legitimate purpose of the hearing.

The prosecutor’s continued questioning of Davenport con-

stituted, in essence, a pretrial deposition—the sort of dis-

covery that is not permitted under the statutes governing

pretrial discovery in criminal matters and that is prohibited

by the requirement in ORS 136.420 that all testimony “shall

be given orally in the presence of the court and jury.” We

conclude, therefore, that the trial court erred in overruling

defense counsel’s second and third objections to the prose-

cutor’s continued questioning of Davenport about the events

surrounding the murder.

As this court has often explained, however, not all

errors require reversal. An error is not a ground for a new

trial if it is harmless—that is, if the court determines that

there is little likelihood that it affected the verdict. State

v. Rogers, 352 Or 510, 543, 288 P3d 544 (2012) (Rogers II).

Defendant argues that the trial court’s decision to allow the

pretrial examination of Davenport was harmful to his case

and likely affected the verdict, because the prosecution was

336 State v. Agee

able to use Davenport’s hearing testimony not only to decide

which questions to ask Davenport, but also to impeach

Davenport with his prior answers when his trial testimony

diverged from his testimony at the hearing. Defendant

argues that Davenport’s credibility was key to the jury’s

determination of defendant’s guilt and that the prosecution

was able to use Davenport’s hearing testimony to under-

mine his credibility.

We agree that Davenport’s testimony was central to

the defense case; his testimony, if believed, tended to excul-

pate defendant. However, we are not persuaded that the

prosecutor’s improper pretrial questioning of Davenport had

a significant effect on Davenport’s credibility at trial or was

likely to have affected the verdict.

Defendant identifies no significant benefit that the

prosecution gained at trial from improperly cross-examining

Davenport during the pretrial hearing. With respect to the

prosecution’s use of Davenport’s pretrial hearing testimony

to decide which questions to ask him at trial, defendant

argues only that the prosecutor “confidently used previewed

* * * testimony” about Davenport’s relationship with and

knowledge of the gang during extended questioning on that

topic at trial and, in closing, repeatedly urged the jury to

find that Davenport had lied in his responses to that ques-

tioning. However, as described above, the trial court did

not err in permitting questioning about Davenport’s gang

involvement; rather, the error that we have identified relates

to questioning that took place after that line of questioning

concluded. It follows that defendant cannot rely on the prose-

cution’s use of Davenport’s pretrial testimony about his gang

involvement for cross-examination purposes to support an

argument that the trial court committed reversible error.

As for the prosecution’s use of Davenport’s pretrial

hearing testimony for impeachment purposes at trial, defen-

dant points to only one instance in which the prosecutor used

Davenport’s hearing testimony to undermine his credibility

at trial. During cross-examination, the prosecutor pointed

out that Davenport had testified at the pretrial hearing

that defendant had had no knowledge of Davenport’s plan

to murder the victim and that defendant had done nothing

Cite as 358 Or 325 (2015) 337

to prepare himself before entering the victim’s cell. But on

direct examination at trial, Davenport testified that both he

and defendant had donned gloves before entering the cell,

which he conceded was a step in preparation for what was

going to happen. The prosecutor focused on that inconsis-

tency to undermine Davenport’s testimony at trial. However,

any damage to Davenport’s credibility from the prosecu-

tor’s ability to draw attention to that one small discrepancy

between Davenport’s hearing testimony and his trial testi-

mony is dwarfed by the fact that much of Davenport’s trial

testimony was contradicted or undermined by other evi-

dence and testimony admitted independently of the prosecu-

tor’s use of Davenport’s hearing testimony for impeachment

purposes.

For instance, on direct examination by defendant,

Davenport testified, among other things, that he goaded and

threatened defendant into entering the victim’s cell against

his will; that Davenport and Davenport alone murdered

the victim, using both the concrete block and the shank to

inflict all of the injuries on the victim while defendant cow-

ered and watched; and that defendant knew nothing about

what would happen in the victim’s cell other than that the

victim had offended Davenport and Davenport wanted to

teach the victim a lesson. That story was not plausible, and

it was inconsistent with other testimony and evidence pre-

sented at trial. Specifically, it was undisputed that defen-

dant entered the victim’s cell wearing gloves and that he

did not leave when Davenport began hitting the victim with

the concrete block, even though the cell doors were still open

at that time. Several corrections officers testified that they

saw defendant punching and kicking the victim, and there

was blood on defendant’s gloves and shoes to support that

testimony. And, when defendant was asked by a corrections

officer after the murder whether he was carrying a weapon,

defendant responded that he had left his weapon on a table

in the victim’s cell, where the shank was later found.

Similarly, Davenport’s testimony about his gang

involvement was internally inconsistent and in conflict

with the testimony of other witnesses. Davenport admit-

ted that he had been a member of a gang for some time,

that he had been the cellmate of two other gang members,

338 State v. Agee

and that he had known most of the other gang members

for years. Additionally, another member of the gang testified

about Davenport’s participation in gang activities, including

that Davenport had attended multiple meetings at which

gang leaders talked about having the victim killed and that

Davenport had volunteered to kill the victim. Nonetheless,

at defendant’s trial, Davenport consistently denied knowing

anything about how the gang operated, its power structure,

the nicknames or roles of any the gang’s other members, or

that its leaders wanted the victim murdered.

Because defendant has identified no specific testi-

mony from the pretrial hearing that the prosecutor was able

to use in cross-examining Davenport that was not also sup-

ported by other evidence, and because there were other incon-

sistencies in Davenport’s testimony that called his credibil-

ity into question, we conclude that the prosecutor’s improper

cross-examination of Davenport at the pretrial hearing was

not likely to have affected the verdict. We therefore hold that,

although the trial court erred in permitting the prosecutor

to examine Davenport extensively about the murder outside

the presence of the jury, that error was harmless.

As previously noted, we have considered the other

assignments of error that defendant claims arose during

the guilt phase and found them to be without merit. Having

found no reversible error during that phase of the trial, we

affirm defendant’s conviction for aggravated murder.

B.  Trial Court’s Ruling that Defendant Is Not Ineligible for

the Death Penalty Due To Intellectual Disability

Three assignments of error relate in some way to

defendant’s contention that he is intellectually disabled. We

begin by addressing defendant’s argument that the trial

court erred in denying, before trial, defendant’s “Motion

Number 20,” in which defendant moved the court for a rul-

ing that he was ineligible for the death penalty because he

was intellectually disabled.7

7

After the jury’s penalty-phase verdict, defendant also filed a sentencing

memorandum in which he argued that the verdict did not authorize a death

sentence, because, among other things, it would be unconstitutional to sen-

tence him to death when he had established functional deficits equivalent to,

and in many instances worse than, other individuals who have been deemed

Cite as 358 Or 325 (2015) 339

We discuss the law governing defendant’s eligibility

for the death penalty in detail below. To put the descrip-

tion of defendant’s assignments of error in context, how-

ever, it is helpful at this point to explain that, in 2002, the

United States Supreme Court held in Atkins that, in light

of evolving standards of decency, the death penalty is exces-

sive, cruel, and unusual under the Eighth Amendment to

the United States Constitution when applied to intellectu-

ally disabled offenders.8 536 US at 321. The Court explained

that the intellectually disabled should be held responsible

for their crimes and they should be punished for them, but

that, “[b]ecause of their disabilities in areas of reasoning,

judgment, and control of their impulses, * * * they do not act

with the level of moral culpability that characterizes the

most serious adult offenders.” Id. at 306. However, the Court

stated, not all people who claim to be intellectually disabled

“will be so impaired as to fall within the range of mentally

retarded offenders about whom there is a national consen-

sus.” Id. at 317. The Court noted that “clinical definitions

of mental retardation require not only subaverage intellec-

tual functioning, but also significant limitations in adaptive

skills such as communication, self-care, and self-direction

that become manifest before age 18.” Id. at 318. But the

Court declined to set a standard for determining whether an

offender is intellectually disabled or to specify a particular

procedure for making that determination. Rather, the Court

left it to the states to develop “appropriate ways to enforce

intellectually disabled. He argued that, because the court found that he suffered

from partial fetal alcohol syndrome, the Eighth Amendment and the Privileges

and Immunities Clause prohibited his execution, because there is no rational

way to distinguish defendant from those individuals found to be exempt from the

death penalty. Defendant contended that, although his IQ might be higher, he

functions in the real world with the same deficits as, or worse than, individuals

classified as intellectually disabled. Defendant orally renewed that argument

during the sentencing hearing. The trial court sentenced defendant to death

without expressly ruling on or otherwise addressing that particular argument.

In his brief to this court, defendant assigns error to the trial court’s effective

rejection of his argument. However, defendant does not make a separate argu-

ment relating to the trial court’s failure to respond to his post-verdict arguments.

We therefore address that matter in the context of our discussion of the denial of

defendant’s pretrial motion for a ruling that he was ineligible for the death pen-

alty because of his intellectual disability.

8

The Eighth Amendment to the United States Constitution provides:

“Excessive bail shall not be required, nor excessive fines imposed, nor

cruel and unusual punishments inflicted.”

340 State v. Agee

the constitutional restriction” on executing intellectually

disabled persons. Id. at 317.

In 2010, when defendant moved the trial court to

declare him ineligible for the death penalty because of his

intellectual disability, Oregon had not yet developed a way

to enforce the constitutional restriction against executing

intellectually disabled offenders. Indeed, in the years since

the Supreme Court decided Atkins, the Oregon legislature

has not adopted any procedure for determining whether a

person accused of aggravated murder has an intellectual

disability and, therefore, ineligible for the death penalty.

Nor has the issue been addressed by the Oregon appellate

courts before today.9 Lacking such guidance, the trial court

9

In fact, although Oregon’s Constitution, like the federal constitution, pro-

hibits cruel and unusual punishment, Or Const Art I, § 16, this court has not

previously announced a categorical prohibition on the execution of persons with

intellectual disabilities. Defendant urges this court to adopt the same standard

under Article I, section 16, that the United States Supreme Court has recognized

for the Eighth Amendment. Defendant, however, having acknowledged that

this court has never announced a categorical ban on the execution of any class

of offenders, does no more than assert that “it stands to reason” that Article I,

section 16, “does contemplate such categorical bans.” That is so, he states,

because the texts of the state and federal constitutional provisions are similar

and this court’s interpretations of Article I, section 16, have generally followed

the Supreme Court’s interpretations of the Eighth Amendment. The state, for

its part, argues that defendant failed to preserve an argument that Article I,

section 16, prohibits the execution of intellectually disabled persons. Because

neither party has made a developed legal argument about the scope of Article I,

section 16, and because the Supreme Court’s Eighth Amendment jurisprudence

clearly prohibits the execution of intellectually disabled persons, we depart from

our normal course—starting our analysis by considering Oregon constitutional

law—and begin instead with the parties’ federal constitutional arguments.

Defendant also argues at length that both Article I, section 16, of the Oregon

Constitution and the Eighth Amendment categorically prohibit the execution

of any person with “reduced mental capacity,” whether the person suffers from

“intellectual disability” as that term is defined in the medical literature, or from

partial fetal alcohol syndrome like defendant, or from any condition that simi-

larly reduces the person’s culpability for his or her actions. That is so, defendant

argues, because inflicting the death penalty on such a person does not mean-

ingfully advance the retributive or deterrent purposes of the death penalty. In

response, the state points out that defendant does not define the contours of

“reduced capacity,” other than to suggest that any person who “functions like an

intellectually disabled person” is exempt from the death penalty. In addition, the

state contends, defendant did not make that argument below, and, therefore, it is

not preserved.

As discussed in the text, the Supreme Court has held that there is a national

consensus against executing a person with “intellectual disability,” a diagnosis

specifically defined in the medical literature. Assuming for purposes of argument

that the Court’s rationale for categorically exempting intellectually disabled

Cite as 358 Or 325 (2015) 341

in this case invited suggestions from the parties about how

to proceed and ultimately concluded that it would conduct

a pretrial hearing, which we refer to as an Atkins hearing,

during which both sides would present evidence on defen-

dant’s mental health and abilities as well as on the pre-

vailing standards for making the determination of intel-

lectual disability. For defendant to be found intellectually

disabled and, therefore, ineligible for the death penalty, the

trial court ruled, defendant would have to establish that

he was intellectually disabled by a preponderance of the

evidence.

At the ensuing hearing, in April 2011, both defen-

dant and the state offered evidence from psychiatrists and

psychologists on defendant’s intellectual functioning. The

evidence at that hearing comprised expert testimony, writ-

ten reports of experts, and documentary evidence of psy-

chological and medical testing of defendant. The parties’

experts all generally agreed on the applicable criteria,10

defendant’s scores on standardized tests, and most of defen-

dant’s diagnoses. They disagreed, however, about how to

apply those criteria in evaluating defendant and about the

significance of the standardized test scores in making the

ultimate determination of whether defendant has an intel-

lectual disability.

In 2011, the diagnostic criteria for intellectual dis-

ability, widely accepted and derived from the medical lit-

erature, amounted to a three-pronged inquiry into (1) the

person’s intellectual functioning, (2) the person’s adaptive

behavior (how the person functions in day-to-day life), and

(3) whether the disability manifested before adulthood. That

persons from execution would apply equally to all individuals with intellectual

deficits similar in severity to those required for a diagnosis of intellectual disabil-

ity, the Court has not extended the categorical exemption from the death penalty

to persons with “reduced mental capacity” who do not meet the criteria for a

diagnosis of “intellectual disability.” We therefore decline to consider the issue in

this case.

10

Both the defense and prosecution relied extensively on two manuals that

provide diagnostic criteria for intellectual disability: the Fourth Edition (text

revision) of the American Psychiatric Association’s Diagnostic and Statistical

Manual of Mental Disorders (4th ed - Text Revision 2000) (in effect when defen-

dant committed his crimes and at the time of his trial), as well as the American

Association on Intellectual and Developmental Disabilities’ Intellectual Disability:

Definition, Classification, and Systems of Supports (11th ed 2010).

342 State v. Agee

paradigm was reflected in the Fourth Edition (text revi-

sion) of the American Psychiatric Association’s Diagnostic

and Statistical Manual of Mental Disorders (4th ed - Text

Revision 2000) (DSM-IV-TR), which defined “mental retar-

dation” as a condition that meets the following three criteria:

“A.  Significantly subaverage intellectual functioning: an

IQ of approximately 70 or below on an individually admin-

istered IQ test * * *.

“B.  Concurrent deficits or impairments in present adap-

tive functioning * * * in at least two of the following areas:

communication, self-care, home living, social/interpersonal

skills, use of community resources, self-direction, func-

tional academic skills, work, leisure, health, and safety.

“C.  The onset is before age 18 years.”

DSM-IV-TR at 49.11 Under the DSM-IV-TR, the severity of

a person’s mental retardation was measured by the person’s

IQ score. A person with an IQ score between about 50-55

and approximately 70 (two standard deviations below nor-

mal) was considered to be mildly mentally retarded and to

have significantly subaverage intellectual functioning.12 Id.

The parties introduced evidence that defendant’s

IQ score was measured at 82 or 84 (depending on the test),

which is in the borderline range.13 They also adduced evi-

dence that defendant suffered from some kind of psychosis

11

As we will explain, in 2013, the DSM-IV-TR was replaced by the American

Psychiatric Association’s Diagnostic and Statistical Manual of Mental Disorders

(5th ed 2013).

12

A person scoring 100 on an IQ test is considered to have an average level of

cognitive functioning. Atkins, 536 US at 309 n 5. Under the DSM-IV-TR, a person

with an IQ between 35-40 to 50-55 was characterized as moderately mentally

retarded, 20-25 to 35-40 as severely mentally retarded, and under 20-25 as pro-

foundly mentally retarded. DSM-IV-TR at 49.

13

Under the DSM-IV-TR, “[b]orderline intellectual functioning * * * describes

an IQ range that is higher than that for Mental Retardation (generally 71-84).”

DSM-IV-TR at 48.

Experts administered two IQ tests to defendant: the Wechsler Adult

Intelligence Scale - Fourth Edition (WAIS-IV), and the Stanford-Binet Intelligence

Scales, Fifth Edition (SB5). Both tests have subtests. On the WAIS-IV, defen-

dant’s full-scale IQ score was 82 and his subtest scores ranged from 74 (working

memory) to 102 (perceptual reasoning). On the SB5, defendant’s full-scale IQ

score was 84, and his subtest scores ranged from 78 (non-verbal) to 92 (verbal).

Cite as 358 Or 325 (2015) 343

disorder,14 as well as partial fetal alcohol syndrome,15 among

other things. Defendant’s experts testified that defendant’s

adaptive functioning was equivalent to that of a seven-and-a-

half-year-old and that he had significant functional impair-

ment in each of the 11 areas identified in the DSM-IV-TR for

measuring adaptive functioning. The state’s expert agreed

that defendant’s adaptive functioning score was more than

two standard deviations below the mean—in the range con-

sistent with mild “mental retardation.”

Two state experts, Dr. Hulteng and Dr. Sebastian,

testified at the Atkins hearing that the generally accepted

practice in the field of psychology was that a person must

have an IQ score of two standard deviations below the mean

or lower (an IQ score of 70 or lower) to permit a diagnosis

of intellectual disability, irrespective of the person’s adap-

tive behavior. Dr. Hulteng testified that, in his opinion, a

person with an IQ score of over 75 could never qualify as

intellectually disabled. Specifically with respect to this

case, Dr. Hulteng and Dr. Sebastian (who had acted as a

consultant but did not personally examine defendant) testi-

fied that defendant’s IQ scores were too high to establish the

first prong in the diagnosis of mental retardation: “signifi-

cantly subaverage intellectual functioning.”

Defendant’s experts testified that an IQ above two

standard deviations below the mean did not exclude an intel-

lectual disability diagnosis. They relied on the American

Association on Intellectual and Developmental Disabilities

(AAIDD) Intellectual Disability: Definition, Classification,

and Systems of Supports (11th ed 2010), which they referred

to as the “Green Book” because of the color of its cover.

According to defendant’s experts, the AAIDD Green Book

14

One of defendant’s experts diagnosed defendant with “Psychotic Disorder

(NOS [Not Otherwise Specified]) and/or Amphetamine-Induced Psychotic

Disorder, with Delusions and Hallucinations.” A state expert diagnosed “Psychotic

Disorder (NOS).”

15

According to Dr. Adler, a defense expert and medical doctor who conducted

a forensic psychiatric evaluation of defendant, individuals with partial fetal alco-

hol syndrome have a confirmed history of prenatal alcohol exposure and the same

level of damage to the central nervous system and the same functional disabili-

ties as are present with fetal alcohol syndrome, but they do not have all the same

facial deformities that a person with fetal alcohol syndrome would have, and

therefore do not have the same “look” as a person with fetal alcohol syndrome.

344 State v. Agee

places more emphasis on a person’s adaptive behavior in

an intellectual disability diagnosis.16 One of defendant’s

experts, Dr. Greenspan, testified that IQ tests offer an

incomplete picture of intelligence, because a person with

partial fetal alcohol syndrome, like defendant, cannot apply

his or her IQ to day-to-day activities. Therefore, a broader

definition that measures the way a person functions should

be used to diagnose intellectual disability. Dr. Greenspan

concluded, under both the AAIDD Green Book and DSM-

IV-TR, that defendant met the first prong in the diagnosis

of mental retardation (significantly subaverage intellectual

functioning), because he has significant intellectual deficits,

and that defendant is intellectually disabled.

In addition, defense expert Dr. Connor, a neuropsy-

chologist, testified that defendant’s IQ scores were invalid

because of the significant differences among the IQ sub-

scores, such as scores for verbal and nonverbal or perceptual

reasoning. He pointed to an MRI showing that defendant

has brain damage, evidenced by a visible defect in his cor-

pus callosum,17 which likely caused that difference in IQ

subscores. Further, Dr. Connor testified that partial fetal

alcohol syndrome together with defendant’s corpus callosum

damage and his low adaptive functioning supported a diag-

nosis of intellectual disability. For similar reasons, another

defense expert, psychiatrist Dr. Adler, concluded that defen-

dant’s IQ score was not alone determinative of his intellec-

tual functioning. Dr. Adler also ultimately diagnosed defen-

dant as intellectually disabled.

At the conclusion of the hearing, the trial court found

that defendant suffered from partial fetal alcohol syndrome.

The court observed that defendant’s experts had opined

that, because of defendant’s partial fetal alcohol syndrome,

16

For instance, the AAIDD Green Book provides the following definition of

intellectual disability:

“Intellectual disability is characterized by significant limitations both in

intellectual functioning and in adaptive behavior as expressed in conceptual,

social, and practical adaptive skills. This disability originates before age 18.”

AAIDD Green Book at 5.

17

The corpus callosum is a mass of nerve fibers that connects the two sides

of the brain. Dr. Connor testified that the damage to defendant’s corpus callosum

was caused by his mother’s consumption of alcohol during pregnancy.

Cite as 358 Or 325 (2015) 345

defendant’s IQ scores were not as important as their own

clinical judgment and the results of defendant’s neuropsy-

chological tests to their analyses of defendant’s intellectual

functioning. Nonetheless, however, the court concluded that

the consensus in the psychological community, as evidenced

by the DSM-IV-TR and the AAIDD Green Book, was that IQ

is the appropriate measure for diagnosing intellectual dis-

ability. Therefore, because defendant’s IQ was about 84, the

court found that defendant had failed to prove “significantly

subaverage intellectual functioning” under the first prong.

And, because defendant’s IQ scores precluded a finding of

“significantly subaverage intellectual functioning” under

prong one, the court declined to consider prongs two (deficits

or impairments in adaptive functioning) and three (onset in

childhood):

“Defendant has not proved by a preponderance of the evi-

dence that he meets the Prong One, ‘significantly sub-average

intellectual functioning.’ For this reason, the court does not

reach Prongs Two and Three. One of Dr. Sebastian’s slides

was a picture of overlapping circles that illustrates the sim-

ple truth about this case: Atkins does not bar the execu-

tion of all persons with [fetal alcohol syndrome]. There are

people with [intellectual disability]. There are people with

[fetal alcohol syndrome]. There is a small group in the mid-

dle that has both. Unfortunately, defendant falls outside of

that group.”

Notwithstanding that the trial court expressly

declined to reach the second prong, the court found that,

“[a]s to Prong Two, adaptive functioning, defendant scored

more than two standard deviations below the mean on the

[relevant] tests, averaging minus 2.5.”18 The court added,

however, that, even though it had found that defendant suf-

fered from partial fetal alcohol syndrome, which affected

his adaptive functioning, there was no generally accepted

scientific opinion in the field of psychology that a diagno-

sis of intellectual disability should be made based only on

adaptive functioning. The court concluded that it could not

depart from the three criteria mentioned in Atkins (that

18

Additionally, although the trial court did not make a specific finding on the

point, we observe that there appears to have been little dispute that defendant’s

intellectual deficits manifested before age 18.

346 State v. Agee

is, essentially, the three prongs set out in the DSM-IV-TR)

and the consensus of professional judgment to conclude that

defendant is ineligible for the death penalty.

In this court, defendant first repeats the argument

he made below that the trial court should have relied on his

experts’ conclusions that, under the DSM-IV-TR and the

AAIDD Green Book, defendant is intellectually disabled not-

withstanding his relatively high IQ scores, because his par-

tial fetal alcohol syndrome and the resulting deficits in his

adaptive functioning significantly impaired his intellectual

functioning. He contends that the trial court appeared to have

concluded that it was legally bound to side with the state’s

experts, because their interpretation of the DSM-IV-TR and

the AAIDD Green Book—applying a bright-line rule requir-

ing an IQ score of more than two standard deviations below

the mean for a determination of intellectual disability—was

more in line with that of a majority of psychologists and psy-

chiatrists. However, he argues, experts’ opinions should not

be discounted simply because they reflect minority views. In

support of the latter proposition, defendant quotes from this

court’s opinion in State v. Wagner, 305 Or 115, 153-54, 752

P2d 1136 (1988), vac’d and remanded on other grounds by

Wagner v. Oregon, 492 US 914 (1989) (Wagner I):

“In Bales v. SAIF, 294 Or 224, 656 P2d 300 (1982), we made

it clear that a decision as to which of two conflicting schools

of medical thought is correct is not a question of law; it is a

question of fact to be decided by presenting in proper evi-

dentiary form the various views to the finder of fact. * * *

We also observed that the opinion of an expert should not

necessarily be given less weight by a finder of fact just

because the witness espouses the view of a minority of his

profession.”

Defendant argues that, in this case, the so-called “minority”

view was held by one of his witnesses, Dr. Greenspan, whom

the trial court acknowledged to be an expert in intellectual

disability and the author of many studies relied on by the

AAIDD in formulating its definition of intellectual disabil-

ity, as well as by Drs. Adler and Connor. Therefore, he con-

tinues, the trial court had sufficient evidence on which to

base a conclusion that defendant had deficits in intellectual

functioning that rendered him intellectually disabled.

Cite as 358 Or 325 (2015) 347

As discussed, at the Atkins hearing, the trial court

found that Atkins, the DSM-IV-TR, and the AAIDD Green

Book all generally required proof of three elements for a

finding of intellectual disability: significantly subaverage

intellectual functioning, significant limitations in adaptive

skills, and onset before the age of 18. The court concluded,

based on Atkins, on its own interpretation of the clinical

manuals, and on the testimony of the state’s experts, that

all three elements, or “prongs,” must be met before the court

could conclude that defendant is intellectually disabled.

The trial court stated that the dispute “is not about

whether intellectual disability should be measured accord-

ing to a rigid cutoff or fixed intelligence test score;” rather,

it boiled down to “what weight the court should give to

both the general IQ score and the sub scores in determin-

ing whether this defendant has ‘significantly sub average

intellectual functioning.’ ” In deciding what weight to give

to IQ scores, the court stated that it would rely on the DSM-

IV-TR and the AAIDD Green Book, which, the court found,

both gave significant relevance and weight to IQ scores.

Based on its interpretation of those clinical manuals and

the testimony of the state’s experts, the court concluded

that defendant’s IQ scores and subtest scores were too high

to permit a finding, under the first prong, of “significantly

subaverage intellectual functioning.” In addition, the court

ruled that, even if IQ scores were irrelevant, defendant

could not prove intellectual disability, because his neuro-

psychogical test scores were too high for a finding of sig-

nificantly subaverage intellectual functioning. Finally,

the court concluded that there was no generally accepted

scientific opinion in the field of psychology that diagnosis

of intellectual disability should be based solely on adap-

tive functioning. Principally for those reasons, the court

rejected the opinions of defendant’s experts that defendant

was intellectually disabled.

The trial court thus considered and weighed the

evidence presented at the Atkins hearing and, based on

that evidence, ruled that defendant had not met his bur-

den of establishing ineligibility by a preponderance of the

evidence. The trial court did not, as defendant suggests,

use a bright-line rule requiring an IQ score of at least two

348 State v. Agee

standard deviations below the mean for a determination of

intellectual disability in determining whether defendant

had made the necessary showing. The trial court deter-

mined that defendant had not met the first prong—the intel-

lectual functioning prong—based on his IQ scores, but it did

not end its analysis there. Rather, as described, the court

considered defendant’s IQ subtest scores and the results of

other neuropsychological tests administered by the exam-

ining psychologists and psychiatrists and found them all to

be insufficient to establish intellectual disability. For those

reasons, we conclude that the trial court’s Atkins ruling was

not erroneous at the time it was made, and we reject defen-

dant’s argument to the contrary.

Alternatively, defendant argues that the publica-

tion of the American Psychiatric Association’s Diagnostic

and Statistical Manual of Mental Disorders (5th ed 2013)

(DSM-5) in May 2013, after the verdict was rendered in this

case, significantly altered the central premise of the trial

court’s legal conclusion, and, therefore, viewed in the light of

present circumstances, the trial court’s ruling was errone-

ous. He asserts that the new DSM-5 diagnostic criteria for

intellectual disability depart from a rigid reliance on IQ test

scores and are in line with the views of his experts, and that

they therefore raise serious questions about the trial court’s

conclusion. He also contends that the Supreme Court’s recent

decision in Hall v. Florida, 572 US __, 134 S Ct 1986, 188

L Ed 2d 1007 (2014), issued during the pendency of this

appeal, supports that view. Defendant therefore urges the

court to remand the case for a new evidentiary hearing in

light of current scientific knowledge, so that the trial court

can make a determination of intellectual disability under

a proper understanding of prevailing medical practice. See

State v. Lawson/James, 352 Or 724, 291 P3d 673 (2012)

(reversing and remanding for a new evidentiary hearing

based on current scientific research and literature in area of

witness identification).

The state responds that neither the DSM-5 nor Hall

changed either the definition of intellectual disability or the

legal landscape in a way that materially affects the valid-

ity of the trial court’s determination. The state argues that,

under both the DSM-5 and Hall, intellectual functioning

Cite as 358 Or 325 (2015) 349

is an independent criterion to be met, and IQ is still a key

diagnostic feature in that determination.

As we explained above, the DSM-IV-TR required

three diagnostic criteria to be met for a diagnosis of intel-

lectual disability: significantly subaverage intellectual func-

tioning, as evidenced by an IQ of approximately 70 or below;

concurrent deficits in adaptive functioning; and onset before

age 18. DSM-IV-TR at 39-49. The DSM-5 continues to require

three similar criteria, but it deemphasizes reliance on test

scores and emphasizes that the defining quality of intellec-

tual disability is the inability to function in day-to-day life:

“Intellectual disability (intellectual developmental disorder)

is a disorder with onset during the developmental period

that includes both intellectual and adaptive functioning

deficits in conceptual, social, and practical domains. The

following three criteria must be met:

“A.  Deficits in intellectual functions, such as reasoning,

problem solving, planning, abstract thinking, judgment,

academic learning, and learning from experience, con-

firmed by both clinical assessment and individualized,

standardized intelligence testing.

“B.  Deficits in adaptive functioning that result in failure

to meet developmental and socio-cultural standards for

personal independence and social responsibility. * * *

“C.  Onset of intellectual and adaptive deficits during the

developmental period.”

DSM-5 at 33. Where the DSM-IV-TR referred to “signifi-

cantly subaverage intellectual functioning,” the DSM-5 uses

the term “deficits in intellectual functions.” Where the DSM-

IV-TR specifically pointed to “an IQ of approximately 70 or

below on an individually administered IQ test” as establish-

ing “significantly subaverage intellectual functioning,” the

DSM-5 deletes reference to particular IQ scores, emphasiz-

ing instead that clinical assessment and standardized test

results confirm a person’s deficits in intellectual functions.

Similarly, the DSM-IV-TR categorized “mental retardation”

by degree of severity—mild, moderate, or severe—based

solely on IQ scores. DSM-IV-TR at 42. The DSM-5, by con-

trast, provides that severity level is defined by adaptive

functioning, not by IQ score:

350 State v. Agee

“The various levels of severity are defined on the basis

of adaptive functioning, and not IQ scores, because it is

adaptive functioning that determines the level of supports

required.”

DSM-5 at 33.

Although the DSM-5 recognizes that “[i]ntellectual

functioning is typically measured with individually adminis-

tered and psychometrically valid, comprehensive, culturally

appropriate, psychometrically sound tests of intelligence”

(i.e., IQ tests) and that “[i]ndividuals with intellectual dis-

ability have scores of approximately two standard devia-

tions or more below the population mean,” it nonetheless

states that “[c]linical training and judgment are required to

interpret test results and assess intellectual performance.”

Id. at 37. It notes, further, that

“IQ test scores are approximations of conceptual function-

ing but may be insufficient to assess reasoning in real-life

situations and mastery of practical tasks. For example, a

person with an IQ score above 70 may have such severe

adaptive behavior problems in social judgment, social

understanding, and other areas of adaptive functioning

that the person’s actual functioning is comparable to that of

individuals with a lower IQ score. Thus, clinical judgment

is needed in interpreting the results of IQ tests.”

Id.

Those differences reflect a significant change in the

way that intellectual disability is diagnosed, and appear

to permit a finding of “deficits in intellectual functions,”

DSM-5 at 33 paragraph (A), and a diagnosis of intellectual

disability, based in part on significant deficits in adaptive

functioning, as defendant’s experts suggested at the Atkins

hearing. The Supreme Court recognized as much in Hall. As

the Court stated, under the DSM-5, “an individual’s ability

or lack of ability to adapt or adjust to the requirements of

daily life, and the success or lack of success in doing so, is

central to the framework followed by psychiatrists and other

professionals in diagnosing intellectual disability.” 134 S Ct

at 1991; see also 134 S Ct at 2006 (Alito, J., dissenting)

(DSM-5 “fundamentally alters the first prong of the long-

standing, two-pronged definition of intellectual disability

Cite as 358 Or 325 (2015) 351

that was embraced by Atkins and has been adopted by most

States. In this new publication, the [American Psychiatric

Association] discards ‘significantly subaverage intellectual

functioning’ as an element of the intellectual-disability

test.”).

In Hall, the court considered the constitutionality

of a Florida statute that defined intellectual disability to

require an IQ test score of 70 or less. The defendant in that

case, Hall, had an IQ of 71, which was within the margin of

error for the test, but the Florida Supreme Court held that,

under the state statute, Hall was not entitled to a hearing

to try to establish his intellectual disability and resulting

ineligibility for the death penalty. The Supreme Court held

that, when a defendant has an IQ score between 70 and

75, the defendant’s lawyers must be allowed to offer addi-

tional clinical evidence of intellectual deficit, including the

inability to learn basic skills and adapt to changing circum-

stances. 134 S Ct at 2001. In reaching that conclusion, the

Court observed that the existence of concurrent deficits in

intellectual and adaptive functioning are the defining char-

acteristics of intellectual disability. Id. at 1994. The Court

noted that, on its face, the Florida statute could have been

construed consistently with the way intellectual disability

was discussed in Atkins, which relied on the DSM-IV-TR in

articulating the views of the medical community about how

intellectual disability should be measured and assessed.

Id. However, the Court stated, the Florida Supreme Court’s

interpretation of its statute to bar a person with an IQ score

over 70 from presenting other evidence showing that his or

her faculties were limited created an unacceptable risk that

persons with intellectual disability will be executed, and

was therefore unconstitutional, because it did not permit

the court to consider evidence of deficits in the defendant’s

adaptive functioning. The Court explained:

“Pursuant to this mandatory cutoff, sentencing courts

cannot consider even substantial and weighty evidence of

intellectual disability as measured and made manifest by

the defendant’s failure or inability to adapt to his social

and cultural environment, including medical histories,

behavioral records, school tests and reports, and testimony

regarding past behavior and family circumstances. This is

352 State v. Agee

so even though the medical community accepts that all this

evidence can be probative of intellectual disability, includ-

ing for individuals who have an IQ test score above 70. * * *

“Florida’s rule disregards established medical practice

in two interrelated ways. It takes an IQ score as final and

conclusive evidence of a defendant’s intellectual capacity,

when experts in the field would consider other evidence.

It also relies on a purportedly scientific measurement of

defendant’s abilities, his IQ score, while refusing to recog-

nize that the score is, on its own terms, imprecise.”

Id. at 1994-95.

It is true that defendant’s IQ in this case is higher

than that of the defendant in Hall, and, in fact, higher than

the range of scores that the Court was specifically concerned

with in Hall. We also recognize that, unlike the Florida

Supreme Court, the trial court in this case did not use a

strict numerical cutoff when deciding that defendant had

not met his burden of proof. However, the Court’s statements

in Hall about the need to consider a defendant’s serious

deficits in adaptive functioning in determining intellectual

disability for purposes of ineligibility for the death penalty

apply with equal force in the present circumstances. In this

case, the trial court concluded that it would be inappropri-

ate to consider defendant’s deficits in adaptive functioning

in determining whether defendant demonstrated signifi-

cantly subaverage intellectual functioning under the DSM-

IV-TR’s first prong, and it rejected the opinions of defen-

dant’s experts because they considered defendant’s deficits

in adaptive functioning due to partial fetal alcohol syndrome

to diagnose him as intellectually disabled. The trial court

ruled that, because of defendant’s relatively high scores on

IQ and other neuropsychological tests, it would not consider

evidence of defendant’s adaptive functioning deficits. As we

have stated, that ruling was correct when it was made, as

viewed under then-existing published medical standards.

Those standards, however, were undergoing change,

as the testimony of defendant’s medical experts suggested,

and the changes are reflected in the DSM-5. Relying on

the new standards, the Court in Hall reversed a Florida

decision because it precluded the trial courts in that state

from considering “even substantial and weighty evidence

Cite as 358 Or 325 (2015) 353

of intellectual disability as measured and made manifest

by the defendant’s failure or inability to adapt to his social

and cultural environment, including medical histories,

behavioral records, school tests and reports, and testimony

regarding past behavior and family circumstances.” Hall,

134 S Ct at 1994. In this case, the trial court also did not

consider that kind of evidence.

In Atkins and in Hall, the Court observed that indi-

viduals who meet the “clinical definitions” of intellectual

disability bear diminished personal culpability, because, by

definition, they have diminished capacity to understand and

process information, to communicate, to learn from their

mistakes and experiences, to engage in logical reasoning,

to control impulses, and to understand the reactions of oth-

ers. Hall, 134 S Ct at 1993; Atkins, 536 US at 318. As we

have explained, under the DSM-5, the clinical definition of

intellectual disability permits consideration of evidence to

support a finding of a deficit in intellectual functioning that

the trial court in this case believed should be disregarded.

The DSM-5 no longer requires proof of “significantly sub-

average intellectual functioning.” Instead, it simply requires

“deficits” in intellectual functioning, which may be shown in

a variety of ways and confirmed by clinical assessment and

standardized tests. Thus, the consensus of the psychological

community, as reflected in the DSM-5, now recognizes that

intellectual functioning should be interpreted in conjunction

with adaptive functioning in diagnosing intellectual disabil-

ity. DSM-5 at 37 (“The diagnosis of intellectual disability is

based on both clinical assessment and standardized testing

of intellectual and adaptive functioning.”).

As we have described, that was essentially the posi-

tion that defendant’s experts took at the Atkins hearing. The

current consensus in the psychological community on this

point is, however, inconsistent with the trial court’s rejec-

tion of defendant’s experts’ diagnosis of intellectual disabil-

ity on the basis that there is no generally accepted scientific

opinion in the field of psychology that adaptive functioning

plays a role in the determination of a deficit in intellectual

function. For that reason, even though the trial court’s rul-

ing comported with the published standards existing at the

time that the court ruled, we now conclude that the trial

354 State v. Agee

court did not apply now-current medical standards in deter-

mining that defendant had not met his burden of proof to

show that he has an intellectual disability.

This court has recognized that a high level of scru-

tiny is required in death penalty cases:

“Capital cases require our most vigilant and deliberative

review. We agree with the United States Supreme Court

statement that ‘[d]eath is a punishment different from all

other sanctions in kind rather than degree’ so that ‘there is

a [corresponding] difference in the need for reliability in the

determination that death is the appropriate punishment in

a specific case.’ Woodson v. North Carolina, 428 US 280,

303-05, 96 S Ct 2978, 2991, 49 L Ed 2d 944, 961 (1976).”

State v. Guzek, 322 Or 245, 264, 906 P2d 272 (1995). Allowing

the trial court’s ruling to stand would “create[ ] an unaccept-

able risk that [a] person[ ] with intellectual disability will be

executed.” Hall, 134 S Ct at 1990. We therefore remand for

a new Atkins hearing, in which the trial court shall consider

the evidence presented in light of the standards set out in

the DSM-5 and discussed in Hall.

C.  Defendant’s Penalty-Phase Assignments of Error

If, after a new Atkins hearing, the trial court again

determines that defendant is eligible for the death penalty

under Atkins, a second penalty-phase proceeding would not

be required unless this court were to find reversible error

in the penalty-phase proceeding below. Accordingly, we

consider defendant’s penalty-phase assignments of error to

determine whether any is well taken.

1.  Trial court’s refusal to permit defendant’s experts to

testify about their diagnoses

Defendant contends that the trial court erred

during the penalty phase in refusing to allow his experts

to testify that they had diagnosed defendant as intellec-

tually disabled. Following the trial court’s ruling at the

Atkins hearing that defendant was eligible for the death

penalty, defendant requested the trial court’s permission

to call Drs. Greenspan and Adler to testify that they had

diagnosed defendant as intellectually disabled at a future

penalty-phase hearing, in the event the jury convicted him

Cite as 358 Or 325 (2015) 355

of aggravated murder at the conclusion of the guilt phase.

Defendant explained that the prosecutor and the trial court

had agreed that he could present evidence of intellectual

disability during the penalty phase. Defendant argued that

the jury should consider evidence of intellectual disability

just like other mitigating evidence—something that could,

but need not, merit a life sentence.

The trial court stated that it already had deter-

mined that defendant was not intellectually disabled. There-

fore, the court reasoned, the jury must be permitted to con-

sider and give effect to any mitigating evidence, but that

requirement would be met if defendant were able to pres-

ent evidence of his “diminished capacity.” Near the close of

the state’s evidence during the penalty phase, defendant

renewed his request that Drs. Greenspan and Adler be

permitted to testify about their intellectual disability diag-

noses. The court then ruled that “no party could introduce

evidence that defendant was intellectually disabled, includ-

ing evidence from defense experts that they had diagnosed

defendant as intellectually disabled.”

In this court, defendant argues that evidence that

two experts diagnosed him as intellectually disabled was rel-

evant to defendant’s character and background and to the cir-

cumstances of the charged offense under ORS 163.150 and the

Eighth Amendment. He argues that all relevant mitigating

evidence is admissible in the penalty phase, and that, under

the Eighth Amendment, evidence that experts diagnosed

him as intellectually disabled is admissible even though the

court had concluded that he was eligible for the death penalty

under Atkins at a pretrial hearing on that issue. Defendant

asserts that legal scholars have recognized that

“the Atkins decision overruled the aspect of Penry [v.

Lynaugh, 492 US 302, 109 S Ct 2934, 106 L Ed 2d 256

(1989)] that had allowed the execution of mentally retarded

persons. However, the Court’s ruling in Penry that a defen-

dant must be allowed to present all information to a jury

that might be considered mitigating evidence, including

evidence regarding mental capacity and childhood abuse,

was not altered by the Atkins decision.”

Ronald D. Rotunda and John E. Nowak, 3 Treatise on

Constitutional Law: Substance and Procedure § 17.3(d), 46-47

356 State v. Agee

(5th ed 2012). Indeed, defendant points out, the Supreme

Court has held that

“a State cannot preclude the sentencer from considering

any relevant mitigating evidence that the defendant prof-

fers in support of a sentence less than death. * * * [V]irtu-

ally no limits are placed on the relevant mitigating evi-

dence a capital defendant may introduce concerning his

own circumstances[.]”

Payne v. Tennessee, 501 US 808, 822, 111 S Ct 2597, 115 L Ed

2d 720 (1991) (internal quotation marks and citations omit-

ted). Defendant argues that the trial court violated the

Eighth Amendment when it failed to permit the jury to give

effect to mitigating evidence that he had been diagnosed as

intellectually disabled. Finally, defendant argues that the

error requires reversal because it is likely that the error

affected the verdict and therefore was not harmless.

The state responds that the trial court did not

preclude defendant from presenting any substantive evi-

dence of his mental and intellectual deficits, including any

diagnoses of those deficits and the factual bases for them;

it merely ruled that defendant could not elicit testimony

from his experts about their opinion on the ultimate legal

issue—whether defendant was intellectually disabled as

that phrase is used in Atkins for purposes of defining the

scope of the exemption from execution. The state argued

that that ruling was correct, because a witness is not enti-

tled to offer an opinion on a legal issue that is at variance

with the trial court’s ruling. In its briefing before this court,

the state acknowledges, as it must, that “a witness is enti-

tled to offer an opinion within the proper scope of his or

her professional expertise.” Additionally, in oral argument

in this court, the state conceded that, had defendant asked

his experts, during the penalty phase of the trial, to state

their diagnoses of defendant, their testimony to the effect

that they had diagnosed defendant as intellectually disabled

would have been admissible. However, the state argues, that

is not what happened here or what the trial court’s ruling

addressed.

Additionally, the state argues that the trial court

did allow defendant to present extensive relevant and

Cite as 358 Or 325 (2015) 357

substantive evidence about his substantial mental and

intellectual deficits, and his experts were permitted to tes-

tify about all their diagnoses, other than their diagnoses

that defendant was intellectually disabled. The state con-

tends that the specific opinion by defendant’s experts that

he is intellectually disabled would not have been relevant to

any issue that was before the jury, because the trial court

had already ruled that he is not intellectually disabled. That

is, the state goes on, it was proper for the jury to hear and

consider evidence regarding the nature, extent, and cause

of defendant’s intellectual deficits, and evidence on those

points was admitted without restriction. But having the

defendant’s experts go one step further to opine that defen-

dant is “intellectually disabled” would not have provided

any additional meaningful information to the jury.

As a preliminary matter, after reviewing the record,

we conclude that the state takes an overly narrow view of

the trial court’s ruling. In an Agreed Narrative Statement,

signed by counsel for the state and defendant, the par-

ties memorialized a discussion that they had had with the

trial court in chambers during the penalty phase regard-

ing “limitations on defendant’s evidence.” According to that

statement,

“defendant informed [the judge] of his intent to offer mit-

igating evidence that two of his experts, Drs. Adler and

Greenspan, had diagnosed him as intellectually disabled.

The evidence would have been identical to the evidence

defendant offered during the pretrial hearing. [The judge]

ruled that no party could introduce evidence that defendant

was intellectually disabled, including evidence from defense

experts that they had diagnosed defendant as intellectually

disabled. [The judge] so ruled because she had ruled pre-

trial that defendant had failed to meet his burden to estab-

lish that he was ineligible for the death penalty because

of intellectual disability and she concluded that no party

could offer evidence inconsistent with that ruling.”

(Emphasis added.) Thus, the agreed narrative confirms that

defendant informed the court of his intention to offer his

experts’ diagnoses of intellectual disability as mitigating

evidence and that the court precluded introduction of those

diagnoses for any and all purposes, and not only to establish

358 State v. Agee

that defendant was ineligible for the death penalty under

Atkins.19 It is true that the judge cited her earlier Atkins rul-

ing as the reason for excluding the experts’ diagnoses, but

nothing in the Agreed Narrative Statement suggests that

defendant would have been permitted to present evidence of

his experts’ intellectual disability diagnoses as mitigation

evidence.

We also disagree with the state that evidence that

two experts diagnosed defendant as intellectually disabled

was irrelevant. The relevance standard set out in OEC 40120

applies in the penalty phase of a capital trial, State v. Stevens,

319 Or 573, 580, 879 P2d 162 (1994), and that standard pro-

vides a “very low threshold for the admission of evidence.”

State v. Gibson, 338 Or 560, 569, 113 P3d 423 (2005). As we

have already discussed, in the fields of psychology and psy-

chiatry, intellectual disability is a valid clinical diagnosis,

and evidence that defendant’s experts made that diagnosis

more than meets that low threshold for admissibility.

As defendant points out, the death penalty statutes

plainly provide that a trial court must admit any evidence

relevant to a sentencing jury’s consideration of the sentence

for aggravated murder. ORS 163.150(1)(a) provides that, in

a penalty-phase proceeding,

“evidence may be presented as to any matter that the court

deems relevant to sentence including, but not limited to,

19

Attached to the Agreed Narrative Statement is an excerpt from the tran-

script in which the court summarized, on the record, the discussion of the court’s

rulings:

“[THE COURT:]  Next, I think we discussed in chambers the parameters

of the expert testimony here, and we’ve agreed that there would not be testi-

mony from an expert that went outside the parameters of my findings of fact

in the Atkins hearing, nor would they—nor would there be cross-examination

that went beyond those parameters. And I think we agreed that the ‘as if’

portion of my opinion is basically what these experts will be talking about, if

that makes sense, and then you’re free to cross-examine about that. Okay?”

The Agreed Narrative Statement acknowledges that that summary is “cryptic”

and it recites that the “agreed narrative statement accurately describes the dis-

cussion and rulings to which the parties referred in the attached pages of the

transcript.”

20

OEC 401 provides:

“ ‘Relevant evidence’ means evidence having any tendency to make the

existence of any fact that is of consequence to the determination of the action

more probable or less probable than it would be without the evidence.”

Cite as 358 Or 325 (2015) 359

victim impact evidence relating to the personal character-

istics of the victim or the impact of the crime on the victim’s

family and any aggravating or mitigating evidence relevant

to the issue in paragraph (b)(D) of this subsection[.]”

ORS 163.150(1)(b)(D), referred to in that passage, requires

the court to ask the penalty-phase jury to consider “[w]hether

the defendant should receive a death sentence,” the so-called

“fourth question.”21 As this court stated in Stevens,

“the legislature intended the scope of the statutory fourth

question to be co-extensive with the scope of the fourth

question held in Penry and [State v. Wagner, 309 Or 5, 786

P2d 93 (1990) (]Wagner II [)] to satisfy the requirements of

the Eighth Amendment to the Constitution of the United

States.”

319 Or at 582. As pertinent here, the Supreme Court held

in Penry that a defendant must be allowed to present all

information to a jury that might be considered mitigating

evidence, including evidence regarding mental capacity and

childhood abuse. 492 US at 328. And, in Wagner II, this

court held that all aspects of a defendant’s character and

background are relevant to the jury’s “exercise of a reasoned

moral response to the question ‘should defendant receive a

death sentence?’ ” 309 Or at 19.

Dr. Greenspan, a recognized expert in intellec-

tual disability, and Dr. Adler, a forensic psychiatrist, had

diagnosed defendant as intellectually disabled, yet they

were required to omit from their testimony their profes-

sional opinions about that diagnosis—a matter squarely

within their expertise. Their diagnoses were relevant to

21

The first three statutory questions, which, like the fourth question, the

jury must unanimously answer affirmatively to impose the death penalty, are:

“(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;

[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[.]”

ORS 163.150(1)(b)(A), (B), and (C).

360 State v. Agee

defendant’s character and background and to the circum-

stances of the offense under ORS 163.150 and under the

Eighth Amendment, as explained in Penry. 492 US at 328

(intellectual disability is a mitigating fact that a trial court

must permit a jury to consider under Eighth Amendment).

The fact that the state’s experts disagreed with the diag-

nosis does not render it any less relevant. Wagner I, 305 Or

at 153-54 (expert’s opinion should not necessarily be given

less weight just because it reflects minority view). Nor does

the fact that the trial court determined that defendant

had not established his intellectual disability for purposes

of the exemption from the death penalty under Atkins. As

the Supreme Court has stated, “mental retardation for pur-

poses of Atkins, and mental retardation as one mitigator to

be weighed against aggravators, are discrete issues.” Bobby

v. Bies, 556 US 825, 829, 129 S Ct 2145, 173 L Ed 2d 1173

(2009). Evidence that defendant’s experts had diagnosed

him as intellectually disabled was relevant to the fourth

question—whether the defendant should receive a sentence

of death—and defendant was entitled under ORS 163.150

and the Eighth Amendment to present that testimony to the

jury during the penalty phase of his death penalty trial as

mitigating evidence. The trial court erred in excluding it.

As we have stated, under state law, this court must

affirm notwithstanding error if there was “little likelihood”

that the error affected the jury’s verdict. Rogers II, 352 Or at

543. And when, as here, the error violates a defendant’s fed-

eral constitutional right, the court may affirm “only when a

‘reviewing court may confidently say, on the whole record,

that the constitutional error was harmless beyond a reason-

able doubt.’ ” State v. Bray, 342 Or 711, 725, 160 P3d 983

(2007) (quoting Delaware v. Van Arsdall, 475 US 673, 681,

106 S Ct 1431, 89 L Ed 2d 674 (1986)). Under either stan-

dard, the trial court’s error in refusing to permit defendant’s

experts to testify about their intellectual disability diag-

noses was not harmless.

We have explained that the fourth question is a

“mechanism for the sentencing jury to give meaningful

effect to its consideration of the entire range of possible mit-

igating evidence and to provide a ‘reasoned moral response’

Cite as 358 Or 325 (2015) 361

to the ultimate question of whether the defendant should

live or die.” Wagner II, 309 Or at 13. For that reason, “it

is the rare case in which this court can determine, when

evidence relevant to that question is excluded, that the evi-

dence could not have affected” the jury’s decision whether to

impose the death penalty. Stevens, 319 Or at 585. This is not

that rare case. There is no burden of proof with respect to

the fourth question; a juror may vote not to impose a death

sentence for any reason. ORS 163.150(1)(c)(B).22 Moreover, a

sentence of death must be unanimous. ORS 163.150(1)(e).23

Therefore, even if the fact that two experts had diagnosed

defendant as intellectually disabled would not necessarily

have convinced the jury that the state’s experts were incor-

rect, we cannot say, beyond a reasonable doubt, that it would

not have been sufficient to convince one juror to impose a

sentence less than death.24

Because we hold that the trial court erred in refus-

ing to allow defendant’s experts to testify that they had

diagnosed defendant as intellectually disabled and that that

error was not harmless, we vacate defendant’s sentence of

death.

2.  The trial court’s refusal to instruct the jury that it

must determine whether defendant is intellectually

disabled

We address two additional issues that are likely

to arise on remand if there is a further penalty phase pro-

ceeding. The first issue, which is related to the one that we

just decided, is whether the trial court erred in refusing to

22

ORS 163.150(1)(c)(B) provides:

“The court shall instruct the jury to answer the [fourth question] ‘no’

if, after considering any aggravating evidence and any mitigating evidence

concerning any aspect of the defendant’s character or background, or any

circumstances of the offense and any victim impact evidence as described

in paragraph (a) of this subsection, one or more of the jurors believe that the

defendant should not receive a death sentence.”

23

ORS 163.150(1)(e) provides:

“The court shall charge the jury that it may not answer any issue ‘yes,’

under paragraph (b) [setting out the four questions] of this subsection unless

it agrees unanimously.”

24

We do not mean to suggest that the exclusion of relevant evidence could

never be harmless or that the grounds for exclusion of otherwise relevant evi-

dence set out in OEC 403 do not apply.

362 State v. Agee

instruct the jury that it must determine whether defendant

is intellectually disabled. Following the trial court’s ruling

at the Atkins hearing that defendant was eligible for the

death penalty, defendant requested the trial court, in any

subsequent penalty-phase proceeding, to ask the jury sep-

arately to decide whether it finds that defendant is intel-

lectually disabled and to instruct the jury that an affirma-

tive answer to that question would preclude the possibility

of the death penalty. Defendant argued that, under the

Eighth Amendment, he had a constitutional right to pres-

ent evidence of his intellectual disability, and jurors must be

instructed in a manner that permits them to consider and

give full effect to that evidence. And, defendant contended,

under Atkins, the full effect of evidence of his intellectual

disability is that he is categorically ineligible for the death

penalty. Defendant argued that, if the court did not sepa-

rately instruct the jury about the effect of its finding that

he is intellectually disabled, then jurors could conclude that

he is intellectually disabled but that he still deserved death.

Defendant argued that that result was incompatible with

the law and should not be allowed.

The trial court declined to instruct the jury about

intellectual disability, ruling that there is no constitu-

tional or other requirement of a separate jury question on

that issue. In addition to ruling on that question under the

Eighth Amendment, the trial court also concluded that a

separate jury question or instruction on the issue of defen-

dant’s intellectual disability was not required under the

Sixth Amendment.25

In this court, defendant argues that both the Sixth

and Eighth Amendments to the United States Constitution

require a separate jury instruction about intellectual dis-

ability. We take the two arguments in turn.

25

The Sixth Amendment to the United States Constitution provides:

“In all criminal prosecutions, the accused shall enjoy the right to a speedy

and public trial, by an impartial jury of the State and district wherein the

crime shall have been committed, which district shall have been previously

ascertained by law, and to be informed of the nature and cause of the accu-

sation; to be confronted with the witnesses against him; to have compulsory

process for obtaining witnesses in his favor, and to have the Assistance of

Counsel for his defense.”

Cite as 358 Or 325 (2015) 363

Defendant asserts that the Supreme Court has

held that the Sixth Amendment requires that any fact

that increases the punishment for an offense beyond the

statutory maximum, other than the fact of a prior convic-

tion, must be submitted to the jury and proved beyond a

reasonable doubt. Apprendi v. New Jersey, 530 US 466, 490,

120 S Ct 2348, 147 L Ed 2d 435 (2000). In addition, under

the Sixth Amendment, a defendant has the right to have

a jury, rather than a judge, decide on the existence of an

aggravating factor that makes the defendant eligible for the

death penalty. Ring v. Arizona, 536 US 584, 609, 122 S Ct

2428, 153 L Ed 2d 556 (2002). Defendant argues that, if a

defendant is ineligible for the death penalty for any reason,

including age, insanity, or intellectual disability, then he or

she may not be sentenced to death.26 In the particular case

of intellectual disability, defendant argues, under Atkins, a

court may not impose the death penalty on a capital defen-

dant who asserts intellectual disability unless the trier of

fact finds the absence of intellectual disability. If the trier of

fact finds that the defendant is intellectually disabled, then

the statutory maximum is a sentence of life in prison with-

out the possibility of parole. It follows, defendant contends,

that a finding of eligibility for the death penalty is neces-

sary to impose a death sentence, and, therefore, when a

defendant asserts his ineligibility for the death penalty, the

question must be submitted to the jury and proved beyond a

reasonable doubt.

The state responds that defendant’s argument takes

the narrow exemption from execution that Atkins announced,

which was based on a mitigating fact (intellectual disabil-

ity), and attempts to convert it into an element that the

state must prove in the negative. That is, the state contends,

defendant has turned the analysis on its head, suggesting,

essentially, that the absence of a mitigating factor is actually

an aggravating factor that the state must prove to the jury

26

ORS 137.707(2) (persons under the age of 18 when the crime is committed

are not eligible for the death penalty); Roper v. Simmons, 543 US 551, 574-75,

125 S Ct 1183, 161 L Ed 2d 1 (2005) (Eighth Amendment prohibits executing

minors); Ford v. Wainwright, 477 US 399, 409-10, 106 S Ct 2595, 91 L Ed 2d 335

(1986) (Eighth Amendment prohibits executing the insane); Atkins, 536 US at

321 (Eighth Amendment prohibits executing the intellectually disabled).

364 State v. Agee

beyond a reasonable doubt. The state argues that nothing in

the Court’s case law suggests that, when the law defines a

mitigating fact that creates an exemption or departure from

the maximum sentence, the state must prove to the jury

that that fact does not exist.

We agree with the state that, because intellectual

disability is a fact that operates to reduce rather than to

increase the maximum punishment permitted by a verdict

of guilt, the Sixth Amendment does not require the fact of

intellectual disability to be decided by a jury beyond a rea-

sonable doubt. We likewise conclude that the absence of intel-

lectual disability is not an element of a capital offense for

purposes of the analysis under Ring. Defendant has pointed

to nothing in the opinions in either Apprendi or Ring (or any

other case) to suggest that their holdings apply to a situation

in which a factual finding operates to lower the maximum

allowable punishment rather than to raise the punishment

above the statutory maximum.27 In fact, in Apprendi, the

Court carefully distinguished between “facts in aggravation

of punishment and facts in mitigation,” suggesting just the

opposite:

“If facts found by a jury support a guilty verdict of mur-

der, the judge is authorized by that jury verdict to sentence

the defendant to the maximum sentence provided by the

murder statute. If the defendant can escape the statutory

maximum by showing, for example, that he is a war vet-

eran, then a judge that finds the fact of veteran status is

neither exposing the defendant to a deprivation of liberty

greater than that authorized by the verdict according to

statute, nor is the judge imposing upon the defendant a

greater stigma than that accompanying the jury verdict

alone. Core concerns animating the jury and burden-of-

proof requirements are thus absent from such a scheme.”

Apprendi, 530 US at 491 n 16 (citation omitted). Like the

finding of veteran status that the Court used in its example,

a finding of intellectual disability permits the defendant to

“escape the statutory maximum.” That is, a defendant’s intel-

lectual disability reduces the maximum possible sentence

27

Moreover, as defendant concedes, no court that has considered the issue

has concluded that the Sixth Amendment requires a claim of intellectual disabil-

ity under Atkins to be resolved by the jury.

Cite as 358 Or 325 (2015) 365

from capital punishment to life in prison. Therefore, the

absence of intellectual disability is not an element that the

state must prove beyond a reasonable doubt.

Defendant also argues that, under the Eighth Amend-

ment, the fact of intellectual disability is conclusively miti-

gating. That is, he asserts, if a trier of fact finds that a cap-

ital defendant is intellectually disabled, then the Eighth

Amendment prohibits execution. At the same time, however,

as the Court observed in Atkins and in Penry, evidence of a

defendant’s intellectual disability “can be a two-edged sword

that may enhance the likelihood that the aggravating factor

of future dangerousness will be found by the jury.” Atkins,

536 US at 321; Penry, 492 US at 324. For that reason, defen-

dant asserts, the Court in Penry suggested that the jury

must be instructed in a way that ensures that the jury will be

permitted to fully consider the mitigating effect of evidence

of a capital defendant’s intellectual disability. In defendant’s

view, that means that the jury must be instructed that it

must decide whether a defendant is intellectually disabled

and that, if it so finds, defendant is ineligible for the death

penalty.

Defendant’s argument is based on a faulty premise:

that, if the jury were to find, as a factual matter, that he is

intellectually disabled, then the Eighth Amendment prohib-

its his execution. Whether the Eighth Amendment prohib-

its a defendant’s execution is a legal determination, and not

a factual one. As the Supreme Court stated in Hall, “[t]he

legal determination of intellectual disability is distinct from

a medical diagnosis,” even if it is informed by the medical

community’s diagnostic framework. 134 S Ct at 2000. And

while Atkins and Hall require that that legal determination

be made before an arguably intellectually disabled defendant

may be executed, the Court in Atkins specifically left it to the

states to “develop[ ] appropriate ways to enforce the consti-

tutional restriction upon [their] execution of sentences.” 536

US at 317. Nothing in Atkins, or in Hall or Penry, suggests

that the Eighth Amendment or any other constitutional pro-

vision dictates a particular process, or specifically requires

the jury, or even the trial court for that matter, to determine,

as a matter of law, a defendant’s eligibility for the death pen-

alty. In this case, using a process that defendant acceded

366 State v. Agee

to—the pretrial Atkins hearing—the trial court made that

legal determination. And, having made that determination,

the trial court did not err in refusing to require the jury to

decide the matter a second time.28

That is not to say that jurors may not make their

own determinations as a factual, medical matter, based on

the evidence presented, whether defendant is intellectually

disabled. As we have previously noted, the Supreme Court

pointed out in Bies that “[intellectual disability] for pur-

poses of Atkins, and [intellectual disability] as one mitiga-

tor to be weighed against aggravators, are discrete issues.”

556 US at 829. We have already held that defendant was

entitled, under ORS 163.150 and the Eighth Amendment,

to present evidence of his experts’ intellectual disability

diagnoses to the jury during the penalty phase of his death

penalty trial as mitigating evidence, because that evidence

was relevant to the fourth question, whether the defendant

should receive a sentence of death. However, because the

Eighth Amendment does not require the jury to decide the

legal question whether defendant is ineligible for the death

penalty because of his intellectual disability,29 it follows

that the trial court did not err in refusing to instruct the

jury that it must find whether defendant is intellectually

disabled.

28

We do not mean to suggest that it would be error for a trial court to permit

the jury to decide the legal question of intellectual disability. That issue is not

before us. Rather, we hold here that neither the Sixth nor Eighth Amendment to

the United States Constitution requires the jury to make such a determination.

29

To the extent that defendant’s reference to Penry, and its statement to the

effect that intellectual disability evidence can be a two-edged sword, reflects a

further argument that the jury should have been instructed in such a way as

to ensure that that the jury will treat evidence of intellectual disability as miti-

gating rather than aggravating, that argument is not preserved. Defendant pre-

sented the trial court with two proposed jury instructions concerning mitigation

during the penalty phase of his trial: Defendant’s Special Jury Instruction No. 1—

Definition of Mitigating Evidence, and Defendant’s Special Jury Instruction

No. 2—Consideration of Evidence in Mitigation. Neither instruction would have

informed the jury that it should consider evidence of intellectual disability as

mitigating only. Defendant requested that the trial court pose a question to the

jury about intellectual disability, but his arguments in court and in his memo-

randum on that point were confined to ensuring that the jury be instructed that

a finding of intellectual disability has a “conclusive mitigating effect,” by which

defendant specifically meant that, “[i]f the jury finds that a defendant is intellec-

tually disabled, notwithstanding a trial court’s previous determination, then the

defendant is not eligible for the death penalty.”

Cite as 358 Or 325 (2015) 367

3.  The trial court’s exclusion of evidence that Davenport

received a life sentence

The last issue that we address is whether the trial

court erred in granting the state’s motion in limine to exclude

evidence during the penalty phase that Davenport received

a life sentence for his role in the victim’s murder.

In its motion, the state argued that neither Davenport’s

sentence nor evidence related to his intellectual disability was

relevant to any fact at issue in the case. Defendant responded

that evidence that an equally or more culpable codefendant

received a life sentence was a circumstance of the offense and,

therefore, proper mitigation evidence under ORS 163.150 and

the Eighth Amendment. The trial court granted the state’s

motion to exclude evidence, testimony, or argument about

Davenport’s sentence, deciding that it would not admit the

evidence under ORS 163.150 and concluding that the Eighth

Amendment did not require its admission.

In this court, defendant reprises the arguments

he made below, arguing that both ORS 163.150 and the

Eighth Amendment require admission of Davenport’s sen-

tence during the penalty phase. We begin our analysis by

first considering the matter under the state statute. State v.

Sarich, 352 Or 601, 617, 291 P3d 647 (2012) (court considers

questions of state law before questions of federal law and

issues of statutory interpretation before issues of constitu-

tional interpretation). If the statutory source of law provides

a complete answer to the legal question presented, we ordi-

narily decide the case on that basis, rather than turning to

constitutional provisions. Rico-Villalobos v. Guisto, 339 Or

197, 205, 118 P3d 246 (2005).

As we have stated, during the penalty phase, “evi-

dence may be presented as to any matter that the court

deems relevant to sentence including * * * any * * * mitigating

evidence relevant to” the fourth question, whether the defen-

dant should receive a sentence of death. ORS 163.150(1)(a).

Although that paragraph permits introduction of any mit-

igating evidence relevant to the fourth question, ORS

163.150(1)(c)(B) provides that the trial court must instruct

the jury to answer “no” to the fourth question “if, after

considering any aggravating evidence and any mitigating

368 State v. Agee

evidence concerning any aspect of the defendant’s character

or background, or any circumstances of the offense * * *, one

or more of the jurors believe that the defendant should not

receive a death sentence.” Thus, the universe of “any miti-

gating evidence” relevant to the fourth question under ORS

163.150(1)(a) is circumscribed by ORS 163.150(1)(c)(B). To

be relevant to the fourth question, “evidence must relate

to some aspect of the defendant’s character or background

or to any circumstance of the crime.” State v. Barone, 328

Or 68, 97, 969 P2d 1013 (1998) (neither victim’s personal

opposition to death penalty nor expert’s opinion that death

penalty does not deter violent crime was admissible during

defendant’s penalty phase hearing because neither was rel-

evant to defendant’s character or background or to any cir-

cumstance of crime); State v. Longo, 341 Or 580, 606-09, 148

P3d 892 (2006) (trial court did not err in excluding evidence

relating to defendant’s capture and return from Mexico,

because it was not relevant to defendant’s character and did

not make it less likely that he planned the murders).

Evidence is “relevant” under ORS 163.150 if it is

relevant under OEC 401. Stevens, 319 Or at 580 (“The stan-

dard of relevance set forth in OEC 401 applies in penalty-

phase proceedings.”); see also McKoy v. North Carolina, 494

US 433, 440, 110 S Ct 1227, 108 L Ed 2d 369 (1990) (mean-

ing of relevance no different in context of mitigating evi-

dence introduced in capital sentencing proceeding than in

any other context). As the Supreme Court stated in McKoy,

in the context of capital sentencing proceedings, “[r]elevant

mitigating evidence is evidence which tends logically to

prove or disprove some fact or circumstance which a fact-

finder could reasonably deem to have mitigating value.” 494

US at 440. As in noncapital cases, the threshold for rele-

vance in death penalty cases is very low. Stevens, 319 Or

at 584; State v. Davis, 351 Or 35, 48, 261 P3d 1197 (2011)

(relevance standard for admissibility is a low bar).

Moreover, in the death penalty context, whether

evidence is “mitigating” also is a low standard. Notably, evi-

dence need not necessarily relate to the defendant’s guilt for

the crime to be mitigating. Stevens, 319 Or at 583; Tennard

v. Dretke, 542 US 274, 285-86, 124 S Ct 2562, 159 L Ed 2d

Cite as 358 Or 325 (2015) 369

384 (2004). Rather, as the Supreme Court stated in Tennard,

the question is whether the evidence “would be ‘mitigating’

in the sense that it might serve as a basis for a sentence less

than death.” 542 US at 285 (citations and internal quotation

marks omitted). That is, evidence is mitigating “if the sen-

tencer could reasonably find that it warrants a sentence less

than death.” McKoy, 494 US at 441.

Stevens illustrates the low threshold for both rele-

vance and mitigation. In that case, the defendant asserted

that the trial court had erred in sustaining the state’s objec-

tion to a question that his lawyer had asked a state’s wit-

ness on cross-examination, arguing that that evidence was

relevant to the fourth question. The witness (the defendant’s

estranged wife) had been asked to give her opinion about the

potential negative effect of the defendant’s execution on their

daughter. 319 Or at 584. This court acknowledged that that

testimony would not offer any direct evidence about defen-

dant’s character or background, but concluded that, circum-

stantially, it could permit a rational juror to infer that there

were positive aspects to the defendant’s character that could

justify a sentence less than death. Id. For that reason, the

court held that the testimony was sufficiently related to the

defendant’s character as to be relevant in mitigation.

The question in this case is whether evidence of

Davenport’s life sentence is similarly relevant in mitigation

to the jury’s consideration of the fourth question. The state

argues that a sentence imposed on a codefendant does not

have a tendency to show any aspect of a defendant’s char-

acter or background, nor does it tend to show any relevant

circumstance of the offense. The state contends that a defen-

dant facing the death penalty is entitled to an individual-

ized consideration of whether death is appropriate, which

should be based on the defendant’s own personal circum-

stances, his entire personal and criminal history, and his

personal culpability for the crime. According to the state,

disclosing to the jury that a codefendant received a sen-

tence other than death would be confusing and irrelevant,

because the codefendant’s sentence would have been based

on factual and legal circumstances that were unique to that

person. As such, they would have no logical relevance to the

appropriate punishment for the defendant.

370 State v. Agee

The state characterizes defendant’s argument as

positing that, if the jurors in this case found that Davenport

was the person primarily responsible for the murder and

that defendant himself was only an accomplice, then the

jury could conclude, based on the fact that Davenport was

sentenced to life in prison, that the death penalty was not

an appropriate sentence for him. But, the state responds, the

law in Oregon is well established that one who intentionally

aids another in the commission of a crime is just as guilty

as the person who committed the crime. ORS 161.155(2) (so

providing). The state asserts that the personal culpability

of the accomplice does not depend at all on whether, or the

degree to which, the principal offender also was convicted

and punished, and nothing in Oregon law suggests that a

person convicted of a crime as an accomplice is entitled to a

more lenient sentence than, or even the same sentence as,

that imposed on the principal.

Although it is a close question, we conclude that

evidence that Davenport received a life sentence is relevant

mitigating evidence under ORS 163.150. First, we conclude

that Davenport’s sentence is relevant to “[an] aspect of the

defendant’s character or background, or [a] circumstance of

the offense” under ORS 163.150(1)(c)(B). The circumstances

of the offense include the facts, established during the guilt

phase of the trial, that defendant and Davenport jointly

participated in the victim’s murder and that Davenport

was primarily responsible for the victim’s death. Davenport

volunteered to kill the victim for his gang, he planned the

crime, he talked defendant into helping him, and he wielded

the instrument that physically caused the victim’s death.

Davenport’s sentence for his participation in the murder,

including the reason that he received that sentence—that

he was found to be intellectually disabled—are related to

those circumstances, because, to the extent that the jury

believed that defendant acted under Davenport’s influence,

they reflect, at least circumstantially, on defendant’s own

intellectual capacities.

Second, evidence of Davenport’s life sentence is

mitigating, in the sense that a juror could reasonably find

that it warrants a sentence less than death. As we have

stated, the question for the jury during the penalty phase,

Cite as 358 Or 325 (2015) 371

ultimately, is “whether the defendant should live or die,” and

the fourth question is a mechanism for the jury “to provide a

‘reasoned moral response’ ” to that question. Wagner II, 309

Or at 13. As we have just noted, Davenport was primarily

responsible for the victim’s death and, defendant argued,

talked defendant into participating in the killing. The fact

that Davenport did not receive a death sentence because the

court determined that he was intellectually disabled reflects

indirectly on defendant’s own potential intellectual disabil-

ity and, for the reasons the Court stated in Penry, on his

moral culpability. That possibly mitigating circumstance

is appropriately part of the jury’s consideration of whether

defendant deserves death.

Because the fact that Davenport received a life sen-

tence for his role in the victim’s murder was relevant miti-

gating evidence under ORS 163.150, the trial court erred in

excluding it.30 On remand, if a new penalty-phase proceeding

30

State v. Casey, 108 Or 386, 213 P 771, motion to recall mandate den, 108

Or 418, 217 P 632 (1923), cited by the state, is not to the contrary. In Casey, the

defendant and a codefendant were jointly charged with murder but were tried

separately. The defendant was tried first, convicted, and sentenced to death;

subsequently, the codefendant was acquitted. The defendant raised various chal-

lenges based on the fact of the codefendant’s acquittal, but, ultimately, this court

held that the codefendant’s acquittal was not relevant and did not “in any way

affect or mitigate the penalty in the case at bar.” Id. at 423. Casey is not helpful

to the state. It did not involve a sentence received by an equally or more culpable

codefendant. Rather, the codefendant there expressly was found not to be guilty

of the crime at all. It therefore sheds no light on the admissibility in a defendant’s

penalty phase proceeding of evidence that an equally or more culpable codefen-

dant received a sentence less than death.

Additionally, we reject the state’s argument that permitting the jury to

consider, as mitigation, evidence that an equally or more culpable codefendant

received a sentence less than death would be inherently confusing to the jury.

Such evidence routinely has been admitted and argued in mitigation in capital

cases around the country for decades. In fact, a federal statute and at least one

state statute require factfinders in capital murder cases to consider, as a miti-

gating factor, whether “[a]nother defendant or defendants, equally culpable in

the crime, will not be punished by death.” 18 USC § 3592(a)(4); New Hampshire

Criminal Code § 630:5 (VI)(g) (requiring jurors to consider, in determining

whether to impose death penalty, whether “another defendant or defendants,

equally culpable in the crime, will not be punished by death”). And, although

many states do not permit or require evidence of a codefendant’s sentence less

than death to be considered by the jury, courts in several states either permit

consideration of a codefendant’s sentence in mitigation or have at least suggested

that such evidence is relevant and admissible. E.g., Brookings v. State, 495 So 2d

135, 142-43 (Fla 1986) (jurors in capital case may be permitted to consider code-

fendants’ sentences as mitigating factor); State v. Marlow, 163 Ariz 65, 72, 786

372 State v. Agee

is required, evidence of Davenport’s sentence, including the

reason for it, should be admitted as mitigating evidence if

introduced.31

III. CONCLUSION

To summarize, defendant raises 29 assignments of

error. We discuss five of those assignments of error in this

opinion, and we hold that three are well taken. Specifically,

we hold, first, that, although the trial court erred in permit-

ting the prosecutor effectively to depose defendant’s codefen-

dant, Davenport, at a pretrial hearing, that error was harm-

less. Second, we hold that, at defendant’s Atkins hearing,

the trial court used an inappropriate standard in determin-

ing that defendant had not met his burden of proving his

intellectual disability, and we therefore remand for a new

Atkins hearing, in which the trial court shall consider the

evidence presented in light of the standards set out in the

DSM-5 and discussed in Hall. Third, we hold that, during

the penalty-phase proceeding below, the trial court erred in

refusing to permit defendant’s experts to testify that they

had diagnosed defendant as having an intellectual disabil-

ity and that that error was not harmless. Therefore, if the

trial court again rules at the conclusion of the Atkins hear-

ing that defendant does not have an intellectual disability,

a new penalty-phase proceeding will be required. Fourth,

we hold that neither the Sixth nor the Eighth Amendment

to the United States Constitution requires the trial court to

instruct the jury that it must determine whether a defendant

has an intellectual disability. Fifth and finally, we hold that

the trial court erred during the penalty-phase proceeding in

excluding evidence that Davenport received a life sentence

for his role in the victim’s murder, and that, if introduced at

a penalty-phase proceeding on remand, that evidence must

be admitted.

P2d 395, 402 (1989) (fact that codefendant received lesser sentence, no matter the

reason, must be considered by jury and may be found as mitigating circumstance

and weighed against any aggravating circumstances, in determining whether to

impose the death penalty on defendant); Howell v. State, 860 So 2d 704, 762 (Miss

2003) (trial court properly instructed jurors to consider sentence of codefendant

as mitigating evidence); Garden v. State, 844 A2d 311, 317 (Del 2004) (recogniz-

ing codefendant’s life sentence as a mitigating factor).

31

Because we resolve the issue on statutory grounds, we do not reach defen-

dant’s constitutional arguments.

Cite as 358 Or 325 (2015) 373

The judgment of conviction is affirmed. The sen-

tence of death is vacated, and the case is remanded to the

circuit court for further proceedings.