# State v. Douglas > Oregon Supreme Court · October 25, 1990 · 310 Or. 438 URL: https://www.frixlaw.com/law-library/cases/9792456 ## Case - **Full name:** STATE OF OREGON, Respondent, v. RICKY LEON DOUGLAS, Appellant - **Court:** Oregon Supreme Court - **Decided:** October 25, 1990 - **Citations:** 310 Or. 438; 800 P.2d 288; 1990 Ore. LEXIS 342 - **Precedential status:** Published - **Opinion:** Concurrence by Fadeley - **Judges:** Graber, Fadeley - **Cited by:** 25 later opinions in the Frix Law Library ## Citator (automated) - No negative treatment found by the automated citator. That is not the same as a confirmation that the case is good law; read the citing cases. - Full citator and citing cases: https://www.frixlaw.com/law-library/cases/9792456 ## How later opinions describe it (automated extraction) - holding that, where a defendant “did not exhaust his statutory allocation” of peremptory challenges and did not establish “that any member of the jury panel that actually decided his guilt should have been excused for cause[,]” defendant has failed “to identify any prejudice t… - explaining that, having exhausted all his peremptory challenges, the defendant could not com- plain because “he [ha]d not object[ed] to any of the jurors who ultimately heard the case” - finding that the deféndant had a similar motive to cross-examine the unavailable witnesses during a prior security release hearing ## Opinion text FADELEY, J., specially concurring. I concur in the result for the reasons stated in the specially concurring opinion in State v. Simonsen, 310 Or 412 , 798 P2d 241 (1990), and for the additional reason that I cannot agree with footnote 8 of the lead opinion which implies that penalty-phase proceedings conducted under the pre-1989 “statute,” are permissible even though that statute contained characteristics which the United States Supreme Court, in Wagner v. Oregon, 492 US 914 , 109 S Ct 3235 , 106 L Ed2d 583 (1989), found to justify vacation of a judgment based thereon. Note 8 of the lead opinion reads: “We need not and do not decide whether the former statute or the current statute, ORS 163.150 (1989), applies to the penalty proceeding on remand of this case.” 310 Or at 447, n 8 . However, as Wagner v. Oregon was being decided in Washington, D.C., the legislature changed the jury-sentencing statutes. Oregon Laws 1989, chapter 720, section 1 (amending ORS 163.105 to provide two forms of life sentence, one of which is “without the possibility of release or parole”) 1 and *453 section 2 (amending ORS 163.150 to empower the jury to alter that form of life sentence to a second form with a possibility of parole, if the parole board unanimously agrees at a hearing after the defendant has served 20 years) 2 are effective as of July 1989. Oregon Laws 1989, chapter 790, section 135b, further provides that its ORS 163.150 amendments: “are procedural and shall apply to any defendant sentenced to death after December 6,1984.” 3 Chapter 790 was adopted after the effective date of chapter 720. Thus, on its face, the cross reference to ORS 163.105 contained in chapter 790, section 135b, applies to the 1989 form of that statute providing for both forms of life imprisonment. Moreover, the tax cost and the delay in punishment, *454 which may result in a further appeal occasioned by use of the pre-1989 procedures for post-1989 sentencing trials, seem to me to be insufferable. To the special concurrence in State v. Simonsen, supra, which urged that the jury be told explicitly that the jury, and not the judge, is choosing between life and death when it answers the questions stated in ORS 163.150(1)(b), I would add that the jury must be told that current ORS 163.150 empowers the jury to make any of three choices — the jury alone may choose death, life imprisonment “without possibility of release or parole” under ORS 163.105(l)(b), or life with a possibility of parole after 20 years (provided that unanimous concurrence of the parole board is voted at a hearing held after 20 years) under ORS 163.105(l)(c). It seems to me inevitable that proper functioning of the jury as the sentencing authority requires that the jury be told of its options and their meaning. On remand, the jury must be instructed on its choices. Thus, I do not support the portion of the lead opinion which discusses, with apparent disapproval, the trial court’s giving of any instruction about the meaning of a life sentence in this case. 310 Or at 447-51 . I believe an instruction about the life sentence options will always be relevant to inform the jury about its choices before it makes them. However, the instruction given in this case was erroneous because it told the jury that there was a “probability of parole or work release,” rather than a “possibility,” at the option of the parole board. That is not, and was not, the plain meaning of the applicable jury-sentencing statute. Telling a jury there is a probability of parole skews the basis for the sentencing decision in a way not contemplated by the statute. Because the case is remanded for a new penalty-phase trial before a new jury and the error is unlikely to be repeated, it requires no further consideration by this court. Oregon Laws 1989, chapter 720, section 1, in part provides: “(l)(a) When a defendant is convicted of aggravated murder as defined by ORS 163.095, the defendant shall be sentenced, pursuant to ORS 163.150, to death, life imprisonment without the possibility of release or parole or life imprisonment. “(b) A person sentenced to life imprisonment without the possibility of release or parole under this section shall not have that sentence suspended, deferred or commuted by any judicial officer, and the State Board of Parole may not parole the prisoner nor reduce the period of confinement in any manner whatsoever. The Department of Corrections or any executive official may not permit the prisoner to participate in any sort of release or furlough program. “(c) If sentenced to life imprisonment, the court shall order that the defendant shall be confined for a minimum of 30 years without possibility of parole, release on work release or any form of temporary leave or employment at a forest or work camp.” Oregon Laws 1989, chapter 720, section 2, in part provides: “(l)(a) Upon a finding that the defendant is guilty of aggravated murder, the court, except as otherwise provided in subsection (3) of this section, shall conduct a separate sentencing proceeding to determine whether the defendant shall be sentenced to life imprisonment, as described in ORS 163.105 (l)(c), life imprisonment without the possibility of release or parole, as described in ORS 163.105 (l)(b), or death. The proceeding shall be conducted in the trial court before the trial jury as soon as practicable. If the defendant has pleaded guilty, the sentencing proceeding shall be conducted before a jury impaneled for that purpose. * * * ****** “(2) (a) Upon the conclusion of the presentation of the evidence, the court shall also instruct the jury that if it reaches a negative finding on any issue under paragraph (b) of subsection (1) of this section, the trial court shall sentence the defendant to life imprisonment without the possibility of release or parole, as described in ORS 163.105 (l)(b), unless 10 or more members of the jury further find that there are sufficient mitigating circumstances to warrant life imprisonment, in which case the trial court shall sentence the defendant to life imprisonment as described in ORS 163.105 (l)(c).” Oregon Laws 1989, chapter 790, section 135b, in part provides: “(3) Notwithstanding paragraph (a) of subsection (1) of this section, the following shall apply: “(a) * * * Upon remand and at the election of the state, the trial court shall either: “(A) Sentence the defendant to imprisonment for life in the custody of the Department of Corrections as provided in ORS 163.105; or “(B) Impanel a new sentencing jury for the purpose of conducting a new sentencing proceeding. “(b) The new sentencing proceeding shall be governed by the provisions of subsection (1) of this section. * * * “(c) The provisions of this section are procedural and shall apply to any defendant sentenced to death after December 6,1984.” --- Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/9792456. Public record. Not legal advice.