State v. Simonsen

FADELEY, J.,

specially concurring.

I concur in the result but wish to make two points concerning approval of that result. First, I think it wise that this court, the people, and the legislature keep in view the reason why this case is reversed and remanded. Second, I do not agree that the discussion approving the jury instruction given is clearly cast in the appropriate focus.

To the first point, we should be mindful that the United States Supreme Court has vacated the judgment and remanded the case to this court. Wagner v. Oregon, 492 US *418 914 , 109 S Ct 3235 , 106 L Ed 2d 583 (1989). 1 That action may have been based on the inadequacy of the second question under Oregon’s initiated death penalty statutes. The jury was simply asked whether the homicide was sufficiently deliberate and whether the defendant was probably dangerous in the future. No question was asked which permitted the jury to express its opinion about whether the death penalty was appropriate.

To the second point — involving the jury instruction about what the punishment would be if the jury answered the two questions in the affirmative — I presently believe that the Oregon death penalty statutes, including their present form as amended by the 1989 legislature or this court in State v. Wagner (Wagner II), 309 Or 5 , 786 P2d 93 (1990), are properly classified with those state statutes granting the jury the power to make the life or death determination. That is, the jury imposes death, not the sentencing judge. The statute leaves no discretion and is mandatory. But the questions asked of the jury, absent an explicit instruction to that effect, do not apprise the jury that it has the power to determine the sentence of either death or life imprisonment. The reasoning under which the judgment in Wagner v. Oregon, supra, was vacated by the Supreme Court, in my understanding of that reasoning, requires that the jury be directly apprised of its power to choose and also of the effect of the answers it gives to the questions asked. It is true that the fourth question, amended into the statute, may lead the jury to infer, on retrial, that jurors have that responsibility and authority in Oregon. But, I would not leave the question to an inference, especially not when the remedy is easily available. In my view, there is substantial value in telling it like it is and significant vice in pussy-footing about on the subject.

News from the Court too recent to cite indicates that Court rebuffed Oregon’s effort to modify that Court’s ruling in Wagner v. Oregon.