State v. Turnidge

No. 30 May 5, 2016 507

30

State v. Turnidge (S059156) 359

May 5, Or

2016

IN THE SUPREME COURT OF THE

STATE OF OREGON

STATE OF OREGON,

Respondent,

v.

BRUCE ALDON TURNIDGE,

Appellant.

(CC 08C53913; SC S059156)

On automatic and direct review of the judgment of convic-

tion and sentences of death imposed by the Marion County

Circuit Court.

Thomas M. Hart, Judge.

Argued and submitted January 15, 2015.

W. Keith Goody, Cougar, Washington, argued the cause

for appellant. Andy Simrin, Portland, filed the brief for

appellant.

Susan G. Howe, Senior Assistant Attorney General,

Salem, argued the cause and filed the brief for respondent.

With her on the brief were Anna M. Joyce, Solicitor General,

and Timothy A. Sylwester, Assistant Attorney General.

Before Balmer, Chief Justice, and Kistler, Walters,

Landau, Baldwin, Brewer, Justices, and Linder, Senior

Justice pro tempore.*

LINDER, S. J.

The judgment of conviction and sentences of death are

affirmed.

______________

* Nakamoto, J., did not participate in the consideration or decision of this

case.

508 State v. Turnidge (S059156)

Cite as 359 Or 507 (2016) 509

LINDER, S. J.

Defendant was convicted on 10 counts of aggra-

vated murder, as well as other felonies, following a joint trial

with his son, Joshua, whose criminal convictions we affirm

on this date. State v. Turnidge (S059155), 359 Or 364, ___

P3d ___ (2016) (Turnidge (Joshua)). Defendant and Joshua

both were sentenced to death. In this automatic and direct

review of his convictions and sentences of death, defendant

challenges the sufficiency of the evidence to support four of

his 10 aggravated murder convictions; he raises numerous

challenges to other trial court rulings as well. By way of

relief, defendant seeks outright reversal of four of his aggra-

vated murder convictions or, alternatively, remand for a

new trial on those charges or on all counts, and remand for

resentencing. For the reasons set out below, we affirm defen-

dant’s convictions and sentences of death.

This case arises from a December 2008 bombing

of a bank in Woodburn. After a life-threatening phone call

was made to an adjacent bank, and an employee was told

that the lives of employees in both banks were at risk, law

enforcement officers responded to the scene and discovered

the bomb, which they assessed and treated as a hoax device.

While law enforcement officers were trying to dismantle the

bomb, it exploded. Two law enforcement officers were killed;

a third law enforcement officer was critically injured, but

survived; a bank employee was also injured. The factual

details surrounding those events are set out at length in our

opinion in Turnidge (Joshua), 359 Or at 366-69, and we

incorporate and rely on them here.

The investigation of the bombing led to defendant

and Joshua as suspects. Within days of the bombing, they

were arrested. See id. at 370-73 (describing investigation

and arrests). Eventually, they were jointly indicted and

jointly tried, each on 10 counts of aggravated murder, which

included four counts of aggravated felony murder; they were

also charged with related felonies. After the jury returned

verdicts of guilt on all counts, separate penalty-phase trials

were conducted, and the jury voted to impose the death pen-

alty on both defendant and Joshua. The trial court merged

all the aggravated murder convictions relating to each

510 State v. Turnidge (S059156)

murder victim and then entered identical judgments, one

against defendant and one against Joshua, each setting out

two convictions for aggravated murder (one for each victim

who died) and two sentences of death.

On direct review, defendant raises 24 assignments

of error, many of which are identical or substantially simi-

lar to those that Joshua also has raised and that we have

rejected in Turnidge (Joshua). We reject those arguments

in this case for the same reasons that we did so in Turnidge

(Joshua). Defendant raises several additional assignments

of error to rulings that the trial court made or as to other

issues that arose during the pretrial, guilt, and penalty

phases of his trial. For those issues that merit discussion,

we address defendant’s arguments in that order below. As

needed for our analysis, we also set out additional historical

and procedural facts not set out in Turnidge (Joshua).

I.  PRETRIAL PHASE

A.  Excusal of Jurors for Cause and Destruction of Completed

Jury Questionnaires (Assignment Nos. 1-4)

In defendant’s first four assignments of error, he

raises claims that are essentially the same as those raised

and resolved against his position in Turnidge(Joshua).

Specifically, defendant challenges the trial court’s deci-

sion, during voir dire, to excuse three prospective jurors for

cause, based on their responses to questions assessing their

ability to follow the law and their oaths, and to impose the

death penalty if they found that the facts—under the law—

warranted that penalty. Defendant also challenges the

court’s decision to destroy the completed juror question-

naires after voir dire, over defendant’s objection, rather

than retain them as part of the record. We reject defendant’s

arguments for the reasons set out in Turnidge (Joshua), 359

Or at 406-26.

B.  Evidence of Defendant’s Views About Law Enforcement

and Other Political Beliefs (Assignment Nos. 9-15)

We next consider defendant’s arguments that the

trial court erred in denying his pretrial motions to exclude

various statements that he had made, before the crimes in

Cite as 359 Or 507 (2016) 511

this case, arguing that they were not relevant under OEC

401.1

1.  Additional facts and parties’ arguments on review

The statements at issue fall into three groups.

The first group involved statements that defendant made

approximately 30 years before the bombing; in those state-

ments, defendant talked about possibly detonating a bomb

during a police officer memorial with the objective of killing

police officers attending the memorial. The next group of

statements were made in 1995, when defendant cheered the

bombing of the federal courthouse in Oklahoma City and

made comments heroizing one of the individuals responsi-

ble for the bombing. See Turnidge (Joshua), 359 Or at 378

(generally describing defendant’s reaction to and statements

about Oklahoma City bombing). The final group of state-

ments reflected defendant’s antipathy toward the govern-

ment, his desires to form a militia to resist governmental

authority, his acquisition of ammunition and weapons, and

his threat to a person to whom he owed money.2

1

Below, in addition to relying on OEC 401, defendant cited OEC 403 and

OEC 404, but he made no specific argument explaining why the challenged evi-

dence was not admissible under either of those provisions. On review, defendant

again relies on OEC 401 (relevance), but does not make any argument about the

challenged evidence under either OEC 403 or OEC 404. Accordingly, we address

only defendant’s relevancy arguments.

2

In his motion in limine, defendant sought to exclude, among other things:

“Statements of [witness] Kerr, including the following: characterizing

financial arrangements with [defendant] during the 1990s and the alleged

theft of property in Nevada; [defendant] requesting a $75,000 loan to finance

the purchase of military grade weapons; statements that [defendant] was

burying weapons in the desert; statements that [defendant] felt that the FBI

were criminals; statements that [defendant] wanted to build a fort on the

Nevada property to be ready when the government came to get him; state-

ments that [defendant] Bruce Turnidge felt that Timothy McVeigh did a good

thing in Oklahoma City, and an episode in which * * * Kerr claims he was

threatened by [defendant].”

Defendant’s motion did not provide further information about the threat to Kerr,

and neither party discussed that specific evidence during the hearing. On review,

defendant does not make a legal argument specific to the threat; he instead

merely identifies it as part of the evidence of his anti-government beliefs and

activities that he asserts was not relevant or, if relevant, was too prejudicial to

be admissible. At trial, Kerr, who testified only briefly, described the threat as

having been made when Kerr tried to foreclose on property that defendant owned

in Nevada (which was the property on which defendant wanted to build an armed

fortress to resist the government). For purposes of review, in light of the context

in which the threat was made, we consider the evidence of that threat to be part

512 State v. Turnidge (S059156)

At a pretrial hearing on his motion, defendant

argued that statements about bombing the police memo-

rial and his support for the Oklahoma City bombing were

remote in time to the charged crimes and did not involve

anything similar to a bank robbery. Therefore, defendant

argued, that evidence was not relevant to establish intent.

As for the evidence of defendant’s anti-government sen-

timents, desires to form an anti-government militia, and

acquiring weapons and ammunition, defendant argued that

that evidence was not probative of any motive for commit-

ting the crimes charged in this case. The state responded

that, although some of the evidence was remote in time, it

demonstrated defendant’s longstanding anti-government

sentiments and support for killing government officials and

employees, all of which were probative of defendant’s motive

to orchestrate a bombing in circumstances that would draw

law enforcement to the bomb to respond. The state also

argued that the evidence of defendant’s attempts to form a

militia demonstrated his motive to rob a bank—to fund his

anti-government militia.

On review, defendant reiterates his argument that

the challenged evidence is not relevant because neither his

anti-government sentiments nor his militia-related activi-

ties were sufficiently connected or similar to the bombing

at issue in this case. He argues that, because the bank was

privately owned, his anti-government sentiments were not

relevant to its bombing and that the state’s theory that his

motive was to fund militia-related activities was purely

speculative.

2.  Analysis

Relevant evidence is evidence that has “any ten-

dency to make the existence of any fact that is of conse-

quence to the determination of the action more probable or

less probable than it would be without the evidence.” OEC

401. The threshold for admissibility under that relevancy

standard is “very low”—as long as the evidence, based on

logic and experience, can support a reasonable inference

and parcel of the general evidence relating to defendant’s anti-government senti-

ments and his efforts to form a militia.

Cite as 359 Or 507 (2016) 513

that is material to the case, then the evidence is sufficiently

relevant to be admissible, even if that is not the only infer-

ence that the evidence would support. State v. Titus, 328 Or

475, 480-81, 982 P2d 1133 (1999).

As described, the state argued at trial that evidence

of defendant’s statements was relevant to motive. Renewing

its position on review, the state relies on State v. Hayward,

327 Or 397, 963 P2d 667 (1998), for the proposition that evi-

dence that provides a logical inference of motive is relevant

in a criminal prosecution, even though motive is not an ele-

ment that the state must prove. The facts and analysis in

Hayward helpfully illustrate that general proposition. We

therefore begin with that case.

In Hayward, the defendant and his accomplices,

some of whom considered themselves satanists, listened to

death metal music before going to a Dari Mart convenience

store and robbing it. Id. at 399-400. During the robbery,

they killed one clerk and attempted to kill a second. The

defendant sought to exclude the evidence of their obsession

with satanism and death metal music as irrelevant. Id. at

406. This court concluded, however, that the trial court

had properly admitted that evidence as probative of motive,

explaining:

“One of the theories underlying [the] charges was that

death metal music and satanism provided at least one of

the motives for defendant [and his accomplices] when they

planned and committed the Dari Mart crimes. The tes-

timony to which defendant objected was relevant to the

state’s theory that defendant and the others intended to

commit murder, not merely robbery, when they entered the

Dari Mart. The evidence also was relevant to help explain

the brutality of the attacks on [two victims] and to explain

the group’s intention that [the murder victim] also die, not

merely to cover up evidence of their other crimes, but also

to allow them to carve satanic symbols on the bodies or to

leave other blood evidence of satanism at the scene.”

Id. at 407; see also State v. Brumwell, 350 Or 93, 103-04, 249

P3d 965 (2011) (evidence of satanism and death metal music

in context of Dari Mart murder was relevant and admissible

during penalty phase of trial of different participant who

514 State v. Turnidge (S059156)

later committed another murder); Turnidge (Joshua), 359

Or at 451-52 (explaining that, in Hayward and Brumwell,

after evaluating nature of disputed evidence in light of cir-

cumstances of crime, court concluded that record in both

cases showed connection between disputed evidence and

defendants’ motives and intent).

Likewise, here, evidence of defendant’s longstand-

ing anti-government sentiments, his professed desire to kill

police officers, his interest in and enthusiastic approval of

bombings of governmental facilities, and his efforts to form

and arm an anti-government militia all logically tended to

support to the state’s theory about why defendant commit-

ted the charged crimes. The key evidence supporting the

state’s theories of motive is described in detail in Turnidge

(Joshua), id. at 377-78. But to briefly recap, from the state’s

evidence, the jury reasonably could find that defendant and

Joshua had purchased items with which to construct a highly

lethal bomb, had constructed that bomb in a pole barn on

defendant’s property, and had called in a threat to a bank

next-door to the bank where they had planted the bomb,

mentioning both banks in that call. The phone call included

a death threat and instructions that, the jury reasonably

could find, were designed to facilitate a bank robbery and

to draw law enforcement to the scene. The state’s theory of

the case was that defendant had a mixed motive in taking

those actions: He wanted to rob one or both banks, and he

wanted to kill law enforcement officers who responded to the

bomb threat. Evidence of defendant’s anti-government sen-

timents and activities, his desires to form anti-government

militias, his celebration of the Oklahoma City bombing, and

his infatuation with the idea of killing police officers at a

police memorial all logically supported the state’s theory of

why defendant engaged in the bombing.

Contrary to defendant’s suggestion, any connection

between the bombing of the bank in this case and his past

statements and actions was not entirely speculative. Motive,

like other mental states, often can be established only cir-

cumstantially. State v. Rose, 311 Or 274, 283, 283 n 7, 810

P2d 839 (1991). The fact that the evidence is circumstan-

tial does not make it speculative. Here, the challenged evi-

dence provided a direct basis on which a jury could factually

Cite as 359 Or 507 (2016) 515

determine that defendant harbored hostility toward govern-

ment officials and law enforcement. Those were not abstract

hostilities, however. The challenged evidence was a basis on

which the jury could conclude that defendant spent time, in

his own mind’s eye, visualizing acting on those hostilities in

violent ways that were designed to give him the satisfaction

of killing officials and law enforcement officers. That was

direct evidence of what defendant subjectively believed and

desired to do, which in turn provided an inferential basis

from which a jury could find that defendant was motivated

by his beliefs and hostility to plant a bomb in circumstances

that would result—or so defendant intended—in obtaining

money from a bank and killing law enforcement officers who

might try to disarm the bomb. Although that inference of

motive might not be compelled by the evidence, it is one that

a jury reasonably and logically could draw.

The challenged evidence was, therefore, admissible

over defendant’s relevancy objection. See Turnidge (Joshua),

359 Or at 452-53 (similarly concluding that sufficient con-

nection existed between Joshua’s anti-government views

and motive). The trial court properly denied defendant’s

motion in limine to exclude the challenged evidence.

II.  GUILT PHASE

A.  Jury Instructions, “Acquittal-First” (Assignments No.5-6)

Defendant next argues that, on the four aggravated

felony murder charges, the trial court erred by giving an

“acquittal-first” jury instruction based on ORS 136.460(2).3

3

Although defendant did not except to the jury instruction, we conclude

that he adequately raised the constitutional issue that we address in Turnidge

(Joshua) by joining in Joshua’s motion to have ORS 136.460(2) declared uncon-

stitutional based on the Eighth Amendment and the Due Process Clause of the

Fourteenth Amendment of the United States Constitution.

Defendant also urges this court to consider an unpreserved statutory argu-

ment that felony murder is not a “lesser-included offense” of aggravated felony

murder for purposes of ORS 136.460(2) because ORS 136.460(1) refers to crimes

“of different degrees.” Defendant appears to assert that ORS 136.460 does not

apply to aggravated felony murder because the murder statutes do not describe

murder offenses in terms of “degrees.” Defendant notes that this court has often

indicated its willingness to consider unpreserved questions that provide a sub-

constitutional basis for deciding a legal issue. See, e.g., Li v. State of Oregon, 338

Or 376, 391, 110 P3d 91 (2005) (“This court decides cases on subconstitutional

516 State v. Turnidge (S059156)

We also addressed that same issue in Turnidge (Joshua) and

concluded that the trial court properly gave the challenged

instruction. Id. at 497. We reject defendant’s arguments for

the reasons set out in that case.

B.  Motion for Judgment of Acquittal, Proof of “Intent,” and

“Personally” Elements (Assignment Nos. 7-8)

Defendant moved for judgment of acquittal on the

four counts of aggravated felony murder, urging that the

evidence was insufficient to prove that he committed the

murders “personally and intentionally,” as required by ORS

163.095(2)(d). The arguments that he made in support of

his motion, and that he renews before this court, are essen-

tially the same arguments that we rejected in Turnidge

(Joshua), 359 Or at 458-59; id. at 463-68; id. at 485-91.

Consequently, we reject his arguments for the reasons set

out in our opinion in that case.

C.  Jury Instructions, “Causation” (Assignments Nos. 16-20)

Defendant proposed jury instructions on causation

that the trial court declined to give. He assigns error to the

trial court’s refusal to give those instructions and requests

reversal on all counts. The instructions that defendant

requested, and the supporting arguments that he made

below and now renews on review, are not, in any substantive

way, distinguishable from the proposed instructions and

arguments in their support that we addressed in Turnidge

(Joshua), 359 Or at 482-85. For the same reasons that led

us in Turnidge (Joshua) to conclude that the trial court

properly declined to give those requested instructions, we

reject defendant’s parallel arguments in this case.

grounds when it can, even if the parties present only constitutional arguments

for the court’s consideration.”). That is a prudential rule, however, and it is not

appropriate in every case. Defendant’s subconstitutional argument that the

acquittal-first statute, ORS 136.460, does not apply to aggravated felony murder

because felony murder is not a “lesser included offense” of that crime is poten-

tially more problematic under Beck v. Alabama, 447 US 625, 100 S Ct 2382, 65 L

Ed 2d 392 (1980), than construing ORS 136.460 to apply here. That construction

would leave defendant in a position of having no lesser-included instruction at all

despite evidence that would support it, which Beck held is unconstitutional, as we

have discussed in Turnidge (Joshua), 359 Or at 496. Accordingly, we decline to

address defendant’s subconstitutional argument, which, in all events, consists of

only two sentences and is significantly underdeveloped.

Cite as 359 Or 507 (2016) 517

III.  PENALTY PHASE

A.  Right to Allocution (Assignment No. 23)

Defendant next raises an unpreserved argument

that he urges us to consider as plain error. In particular, he

argues that the trial court erred in making a statement to

him about the nature of his right to allocution at the pen-

alty phase. He claims that that statement caused him not

to address the jury on the issue whether he should be sen-

tenced to death, which in turn potentially affected the jury’s

decision. As a remedy, defendant seeks to have the sentences

of death vacated and the case otherwise remanded for a

new penalty-phase proceeding. As explained below—even

assuming that the issue raised is one of law—we conclude

that the legal point is reasonably in dispute and, addition-

ally, that the record gives rise to competing inferences about

the statement’s import, given the context in which the court

made it. Accordingly, we conclude that the alleged error does

not satisfy the requirements for plain error review.

1.  Additional facts and parties’ arguments on review

At the conclusion of the evidence during defendant’s

penalty-phase trial, the trial court engaged in the follow-

ing on-the-record colloquy with defendant, after clearing

the courtroom of everyone except defendant and defense

counsel:

“THE COURT:  You have a right to address the jury that

has the decision for making the sentence in your case. It’s

called a right to allocute, right to speak aloud to them, to

tell them what you think the sentence ought to be, and it’s

been indicated to me by counsel that you have chosen not to

come to the stand and talk to the jury about what you think

the sentence ought to be. Is that your decision?

“MR. BRUCE TURNIDGE:  Yes.

“THE COURT:  Do you have any questions for me about

that right?

“MR. BRUCE TURNIDGE:  No. I don’t think—they will

make up their mind. They don’t [sic] me to enter—

“THE COURT:  I don’t disagree with that either, but you

have a right, and I need to deal with that. And, of course,

518 State v. Turnidge (S059156)

you would also be subject probably to cross-examination

were you to do that, too. So you understand the choices that

you’re making. You appear to have been attentive to all of

your choices so far. So at least we’ve made this part clear

on the record, that—

“MR. BRUCE TURNIDGE:  Yes.

“THE COURT:  —this is your choice even after talking

with counsel.

“MR. BRUCE TURNIDGE:  Yeah.”

(Emphasis added.) Neither defendant nor his counsel objected

or otherwise voiced any concern about that exchange or the

adequacy of defendant’s waiver of his right to allocution.

On review, defendant argues that the trial court

plainly erred when it stated that defendant would “be sub-

ject probably to cross-examination” during allocution. The

state responds that defendant did not preserve that argu-

ment and that the error does not qualify as one that we can

reach as plain error. Our analysis thus is framed by State v.

Brown, 310 Or 347, 355, 800 P2d 259 (1990), which explained

that an appellate court may review an unpreserved error as

plain error if (1) it is an error of law; (2) it is apparent, that

is, “the legal point is obvious, not reasonably in dispute”;

and (3) it appears on the face of the record, meaning that

the court “need not go outside the record or choose between

competing inferences to find it, and the facts that comprise

the error are irrefutable.”

2.  Analysis

Article I, section 11, of the Oregon Constitution,

provides, in part, that, “in all criminal prosecutions, the

accused shall have the right * * * to be heard by himself and

counsel.” An accused defendant’s right to be heard under that

provision encompasses the common-law right to allocution—

that is, “a convicted defendant’s opportunity to speak before

sentencing.” DeAngelo v. Schiedler, 306 Or 91, 93-94, 93 n 1,

757 P2d 1355 (1988). In exercising that right, a defendant

generally is permitted to “make any statements relevant to

existing sentencing and parole practices”; “state any reason

why he or she feels sentence should not be pronounced[;]

Cite as 359 Or 507 (2016) 519

and, in addition to presenting mitigating evidence, be given

an opportunity to make any relevant personal comments[.]”

Id. at 95-96. Because the right to allocution evolved in a con-

text in which sentencing was a function of the court rather

than of a jury, this court initially characterized it in terms

of a defendant’s right to make statements about sentencing

“to the court.” Id. at 96. In State v. Rogers, 330 Or 282, 4 P3d

1261 (2000), however, this court clarified that a defendant

also is entitled to allocute to a jury during the penalty phase

in a capital proceeding. Rogers provides significant context

for the issue present in this case, and, accordingly, we dis-

cuss it at some length.

In Rogers, the defendant, who had been convicted

on multiple charges of aggravated murder, sought to make

an unsworn statement to the penalty-phase jury. The trial

court ruled that the defendant could make such a statement,

but needed to submit what he intended to say in writing to

the court in advance. The defendant did so, and the court

permitted him to read an edited version of his statement to

the jury. Id. at 292-93. On review, the defendant argued that

the court violated his right to allocution by requiring him to

submit his statement in advance, by editing his statement,

and by requiring him to read a prepared statement rather

than speak extemporaneously. Id. at 293. As a threshold

proposition, the state responded that the right to allocution

did not encompass making an unsworn statement; rather,

a defendant’s constitutional right to be heard was satisfied

by the ability to “take the stand and offer sworn testimony

subject to cross-examination.” Id. at 294.

This court therefore first addressed whether the

defendant in Rogers “had a right to make an unsworn state-

ment to the jury, apart from any right to take the stand and

testify under oath.” Id. at 296. The court began its analysis

by noting that the phrasing of Article I, section 11, indicat-

ing that the right was “to be heard by himself and counsel,”

suggested a right to “present argument without taking the

stand, similar to the way in which his counsel may make

an unsworn closing statement to the factfinder.” Id. at 297.

The court then reviewed the historical context of Article I,

section 11, ultimately concluding that the right to allocution

520 State v. Turnidge (S059156)

guaranteed by that constitutional provision includes the

right to make an unsworn statement to the jury in the pen-

alty phase of a capital proceeding.

The court in Rogers went on to conclude, however,

that, “especially in the case of statements by a defendant

not made in response to questioning under oath, the trial

court has a legitimate concern with assuring that the defen-

dant does not make irrelevant or prejudicial statements.”

Id. at 301. The court therefore reasoned that, although a

trial court is obliged to accommodate a defendant’s exercise

of constitutional rights, it has discretion to ensure that the

trial is carried out in an “orderly and expeditious” man-

ner. Consequently, the restrictions placed on the defendant

in that case did not violate the defendant’s rights under

Article I, section 11. Id.

Defendant argues that the trial court’s state-

ment, in the colloquy quoted above, that defendant would

“be subject probably to cross-examination,” should be

reviewed “for errors of law” and was legally incorrect.

Given the context in which the trial court made the

challenged statement and the nature of our review, as

explained below, we conclude that the court did not com-

mit a plain error of law.

The brief colloquy about defendant’s decision to

waive his right to allocution took place during the penalty

phase, after the close of defendant’s evidence. Significantly,

that colloquy also occurred—presumably at defendant’s

request—outside the presence of the prosecutors. The appar-

ent purpose of the colloquy was to put on the record defen-

dant’s choice not to allocute at sentencing, a choice that, the

record suggests, defendant by then already had made after

consulting with counsel. It was not until defendant advised

the trial court of his choice not to allocute that the court

remarked that defendant “would also be subject probably to

cross-examination.” (Emphasis added.) The court’s remark

was thus made in a context in which no ruling was either

requested or required. Given that fact, we fail to see how

the remark qualifies as an operative decision or ruling sus-

ceptible to challenge on review, either as a preserved issue

or a claim of “plain error.” See ORAP 5.45(3) (in assigning

Cite as 359 Or 507 (2016) 521

error on appeal, appellant must “identify precisely the legal,

procedural, factual or other ruling that is being challenged”

(emphasis added)). That conclusion follows with added force

when, as here, the trial court’s remark had no apparent

effect on either the defendant’s course of action or the course

of the trial or sentencing proceeding.

Defendant nevertheless argues that the colloquy,

and the fact that defense counsel did not object to the

trial court’s remark, demonstrates “that either Defendant

had been improperly informed when he was first apprised

of his right to allocution, or that he was never properly

informed about the nature of his right at all.” If we under-

stand defendant’s point, he asks us to infer from his

counsel’s failure to respond to the court’s remark that his

counsel must have advised him that he would be subject

to cross-examination if he exercised his right to allocute

or—at the least—that whatever advice his counsel had

given him was somehow not accurate. Based on those

alternative scenarios, defendant argues that his waiver of

his right to allocution could not have been knowing and

intelligent.

Defendant, however, cites no authority for the prop-

osition that speculation about what might or might not have

occurred off the record provides a basis for “plain error”

reversal of a conviction. Indeed, Brown indicates otherwise:

Even when the alleged error is one of law and the legal point

is beyond dispute, we nevertheless do not review the “plain

error” unless it appears “on the record,” meaning that we

“need not go outside the record or choose between competing

inferences to find it, and the facts that comprise the error

are irrefutable.” Brown, 310 Or at 355.4 Here, the record

does not indicate what defendant was or was not told about

4

Defendant urges that Rogers, 330 Or 301, held that a defendant could never

be subject to cross-examination during sentencing, but that case did not so hold.

And, as this court recently recognized in State v. Guzek, 358 Or 251, 278-79, 363

P3d 480 (2015), some—although not all—of the historical reasons for the right to

allocution no longer have vitality. Perhaps the most notable change, for purposes

of a capital case, is that the right to allocution is exercised in front of a jury, not

a judge, which raises evidentiary issues. How that and other changes might bear

on the scope of the right to allocution and on the potential for cross-examination

of a defendant who exercises that right in a way that places additional “evidence”

before the jury is far from beyond dispute.

522 State v. Turnidge (S059156)

his Article I, section 11, rights before he made his decision

not to allocute to the jury during the penalty phase. Neither

does the record suggest that the trial court’s comment had

any effect on defendant’s decision. Consequently, we con-

clude that no error is apparent on the record.5

B.  Prosecutor’s Closing Statement (Assignment No. 24)

Defendant’s next argument presents us with another

unpreserved issue that he asks us to consider as plain error.

Defendant contends that the trial court sua sponte should

have taken “corrective action” when the prosecutor, during

closing argument, made statements that, defendant asserts,

“urg[ed] the jury to sentence defendant to death in order

to silence him.” The statements that defendant challenges

were made after the prosecutor referred in closing argument

to the testimony of a witness—an inmate with a low level

of education—who had described defendant as “brilliant.”

The prosecutor then asserted that “[t]hat [type of person]

is who [defendant] will influence inside the prison, and then

when those people get out, he will influence them outside the

prison.” Later, at another point during closing argument, the

prosecutor urged the jury that the only sentence that would

“silence” defendant was a death sentence. As we understand

defendant’s point, defendant contends that the prosecutor’s

closing argument violated his free speech rights under the

First Amendment to the United States Constitution.6

5

In addition, even if we were to conclude that the trial court’s remark

amounted to plain error, we still would have to exercise our discretion to decide

whether to correct that error. One consideration that weighs against reaching an

unpreserved error is “whether the trial court was, in some manner, presented

with both sides of the issue and given an opportunity to correct any error.” Ailes

v. Portland Meadow, Inc., 312 Or 376, 382 n 6, 823 P2d 956 (1991). The chal-

lenged remark that the trial court made here was made outside the presence of

the prosecutors. Thus, not only was the court not making an operative ruling

that defendant would be subject to cross-examination, but the court also was

not presented with legal arguments on the matter by either party. And because

defendant voiced no objection, the court had no opportunity to clarify what had

prompted its remark, to determine whether that remark had any bearing on

defendant’s decision, or to retract or clarify the remark. Those circumstances

would have significant bearing on whether we would exercise our discretion to

reach this issue, even if the issue qualified as plain error, which it does not.

6

The First Amendment provides that “Congress shall make no law * * *

abridging the freedom of speech[.]” It applies to the states through the Due

Process Clause of the Fourteenth Amendment. Presley v. Georgia, 558 US 209,

211-12, 130 S Ct 721, 175 L Ed 2d 675 (2010).

Cite as 359 Or 507 (2016) 523

The state responds that defendant takes those state-

ments out of context. The state asserts that the prosecutor was

appropriately addressing the issue of defendant’s future dan-

gerousness, which the jury was required to consider during

the penalty phase of the trial. See ORS 163.150(1)(b)(B)

(penalty-phase jury must answer question whether probabil-

ity exists that defendant will commit violent criminal acts

constituting continuing threat to society). The prosecutor

had pointed to penalty-phase evidence of defendant’s past

threats and offers to kill others, as well as to defendant’s

zeal to form an anti-government militia and spread his vio-

lent anti-government ideologies. In that context, according

to the state, the prosecutor was referring to defendant’s

dangerousness in terms of his willingness to commit crimes

based on his violent ideologies and his desire to influence

others to commit crimes in pursuit of those same ideologies.

We agree that the prosecutor’s comments, taken

as a whole and in context, support the interpretation that

the state advances. Thus, the prosecutor’s argument was a

permissible one, based on the evidence before the jury and

the question of future dangerousness that the jury had to

decide.

Defendant cites no authority for the proposition

that a jury may not consider that type of evidence in assess-

ing future dangerousness in the penalty phase of a capital

proceeding or that the prosecutor is barred from making

arguments pertaining to evidence of that kind. The primary

case on which defendant relies is Dawson v. Delaware, 503

US 159, 112 S Ct 1093, 117 L Ed 2d 309 (1992). There, the

United States Supreme Court held that evidence of a defen-

dant’s membership in a racist Aryan Brotherhood prison

gang was irrelevant and inadmissible in a capital murder

proceeding. The victim in Dawson had been white, and the

murder had been carried out in the course of a robbery that

the defendant allegedly had committed after escaping from

prison. The Supreme Court reasoned that the evidence at

issue did not establish any connection between the Aryan

Brotherhood and violent escape attempts, but, instead,

established only that the Aryan Brotherhood was a prison

gang that held white racist beliefs. Id. at 165-66. The Court

524 State v. Turnidge (S059156)

specifically noted, however, that it had “previously upheld

the consideration, in a capital sentencing proceeding, of evi-

dence of * * * subversive advocacy where such evidence was

relevant to the issues involved.” Id. at 164 (citing Barclay v.

Florida, 463 US 939, 103 S Ct 3418, 77 L Ed 2d 1134 (1983));

see also id. at 166 (“A defendant’s membership in an organi-

zation that endorses the killing of any identifiable group, for

example, might be relevant to a jury’s inquiry into whether

the defendant will be dangerous in the future.”).

Contrary to defendant’s assertions, this is not a sit-

uation in which the prosecutor’s statements urged the jury

to punish defendant because of his abstract political beliefs

or statements. Rather, the state had presented evidence of

defendant’s beliefs that directly bore on his motivation for the

murders at issue in this case, on his reasons for threatening

to commit other crimes, and on his willingness to encourage

others to follow those beliefs. Based on that evidence, the

prosecutor’s comments invited the jury to draw reasonable

and permissible inferences about defendant’s future danger-

ousness. The trial court did not err in failing to sua sponte

prevent the prosecutor from making those arguments.

IV. CONCLUSION

We reject defendant’s remaining assignments of

error without discussion, including those advanced in defen-

dant’s supplemental pro se brief. Having rejected all defen-

dant’s assignments of error, we affirm the judgment of con-

viction and the sentences of death.

The judgment of conviction and sentences of death

are affirmed.