# State v. Pinnell

> Oregon Supreme Court · August 4, 1994 · 319 Or. 438

URL: https://www.frixlaw.com/law-library/cases/9792760

## Case

- **Full name:** STATE OF OREGON, Respondent, v. MARK ALLEN PINNELL, Appellant
- **Court:** Oregon Supreme Court
- **Decided:** August 4, 1994
- **Citations:** 319 Or. 438; 877 P.2d 635; 1994 Ore. LEXIS 70
- **Precedential status:** Published
- **Opinion:** Dissent by Fadeley
- **Judges:** Graber, Fadeley, Durham
- **Cited by:** 17 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/9792760

## How later opinions describe it (automated extraction)

- stating the quoted Oregon standard for harmless error (internal quotation marks omitted)
- stating Oregon's harmless error standard

## Opinion text

*447 FADELEY, J.,
dissenting.
The homicide in this case occurred in 1985, at a time when we know that the Oregon statute regulating the jury’s imposition of the death penalty did not meet federal constitutional muster. That invalid statute had been initiated and adopted in 1984. In the first case under the 1984 statute to reach it, the Supreme Court of the United States vacated the death sentence imposed under that statute because of constitutional defects in that statute and remanded the case to this court. Wagner v. Oregon, 492 US 914 , 109 S Ct 3235 , 106 L Ed 2d 583 (1989). Thereafter, this court, by a majority vote, added 100 words and a completely new “fourth” question to the statute in an effort to save it from the constitutional infirmity identified by the Supreme Court of the United States. See State v. Moen, 309 Or 45, 102-04 , 786 P2d 111 (1990) (Fadeley, J., dissenting, detailing the majority’s 100-word addition to statute); State v. Williams, 313 Or 19, 44-45 , 828 P2d 1006 , cert den _ US _, 113 SCt 171 , 121 LEd 2d 118 (1992).
This court had no authority to make a substantial, significant, and after-the-fact addition to the 1984 statute that the people, by their vote adopting it, did not include. As was stated in State v. Smith, 56 Or 21, 29 , 107 P 980 (1910), “[i]t is not the function of courts to make laws, but to interpret them.” Only the legislative branch may enact penal laws. State v. Isom, 313 Or 391, 395 , 837 P2d 491 (1992) (“the power of punishment is legislative”). Yet, the majority has affirmed a punishment made possible only by its own extensive amendment to the death penalty statute. From that judicial arrogation of the sole power of a separate and equal branch of the government, I feel compelled to dissent.
Even after that unlawful “amendment,” the statute still would be constitutionally defective, in my view. One example of such a defect is the open ended, standardless question added after Wagner v. Oregon, supra, was decided. The “fourth question,” added by judicial legislation, simply asks the jury to answer “yes” or “no” to the query whether “defendant should” receive the death sentence.” State v. Wagner, 309 Or 5,19 , 786 P2d 93 (1990), cert den 498 US 879 (1990) (Wagner II). It was later added, years after the murder in this case to the statute, ORS 163.150(1)(b)(D). Neither the *448 judicial nor the later legislative amendment to the statute includes standards to be applied in answering that question. 1 The question simply asks the jury’s opinion. When the jury finds as fact that it believes “yes” is the answer, that’s it. The death penalty must follow. No court has any discretion in that penalty scheme. The state law does not permit either judicial review or judicial modification of the substance of that answer.
The resulting lack of review of the penalty is the same as the lack of judicial review, or power to modify, that the Supreme Court of the United States has held in another context to violate the Due Process Clause of the Fourteenth Amendment. See Oberg v. Honda Motor Co., 316 Or 263, 275 , 851 P2d 1084 (1993), rev’d 512 US _ , 114 S Ct 2331 , 129 L Ed 2d 336 (1994) (requiring that appellate review of punitive damage award be made available as matter of due process); Pacific Mut. Life Ins. Co. v. Haslip, 499 US 1 , 111 S Ct 1032 , 113 L Ed 2d 1 (1991) (due process requires post-verdict review including power to modify the extent or degree of the verdict). I find it inconceivable that a punitive verdict of death is not entitled to the same due process as applies to dollar-amount verdicts. 2 No doubt there is as much an “acute danger of arbitrary deprivation” of life as there is of “property” to which the Supreme Court spoke in Oberg. 129 L Ed at 349. The standardless question, and the lack of any review of the answer a jury chooses to give to that death penalty question, are therefore as lacking in due process and as unconstitutional as the punitive damages award. 3
*449 For the foregoing reasons, I would hold that defendant’s death sentence in this case should be vacated and the case remanded for resentencing.
I respectfully dissent.
The statute requires that the jury be instructed to answer the question on the basis of what “the jurors believe would justify a sentence less than death.” ORS 163.150(1)(c)(B). The jurors are instructed, in forming their “belief,” to consider the circumstances of the offense and defendant’s character and background. 309 Or at 20.
The arbitrary nature of the unreviewable answer to the death question is only deepened by exclusion from the juiy panel of all members of that fraction of the community who, in the abstract, do not favor the death penalty.
Tuilaepa/Proctor v. California, 512 US _ , 114 S Ct 2630 , 129 L Ed 2d 750 (1994), are not to the contrary but, instead, support questioning of the adequacy of Oregon’s “fourth” question and accompanying instruction. In California, the jury must find one or more of the statutorily prescribed special circumstances to be present in relation to the homicide before the defendant is even eligible for the death penally. But that verdict, determining death eligibility, neither imposes the death *449 penalty nor escapes post-verdict judicial review for due process purposes. A California death penalty may be imposed only among those eligible.
After death eligibility is determined, another California statute then requires a separate jury inquiry that selects, from among those eligible, which ones shall be executed. In making that selection in California, the jury does not decide whether defendant “should be” put to death. Instead it decides whether one or more of the fact-based, statutorily specified factors exist. The factors are much more specific than is the question in Wagner II or OES 163.150(1)(b)(D). They are of a factual nature, not an open-ended inquiry as to “beliefs” about execution. The California statute, of factors a jury must find to impose death, provides:
“(a) The circumstances of the crime of which the defendant was convicted in the present proceeding and the existence of any special circumstances found to be true pursuant to Section 190.1.
“(b) The presence or absence of criminal activity by the defendant which involved the use or attempted use of force or violence or the express or implied threat to use force or violence.
“(c) The presence or absence of any prior felony conviction.
“(d) Whether or not the offense was committed while the defendant was under the influence of extreme mental or emotional disturbance.
“(e) Whether or not the victim was a participant in the defendant’s homicidal conduct or consented to the homicidal act.
“(f) Whether or not the offense was committed under circumstances which the defendant reasonably believed to be a moral justification or extenuation for his conduct.
“(g) Whether or not defendant acted under extreme duress or under the substantial domination of another person.
“(h) Whether or not at the time of the offense the capacity of the defendant to appreciate the criminality of his conduct or to conform his conduct to the requirements of law was impaired as a result of mental disease or defect, or the [ejffects of intoxication.
“(i) The age of the defendant at the time of the crime.
“ (j) Whether or not the defendant was an accomplice to the offense and his participation in the commission of the offense was relatively minor.
“ (k) Any other circumstance which extenuates the gravity of the crime even though it is not a legal excuse for the crime.” Cal Penal Code Ann § 190.3 (West 1988).

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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/9792760. Public record. Not legal advice.