State v. Cunningham

FADELEY, J.,

dissenting.

In the first case to reach the Supreme Court of the United States under Oregon’s 1984 death penalty statute, that court vacated the death sentence imposed because of constitutional defects in Oregon death penalty statute and remanded the case to that court. Wagner v. Oregon, 492 US 914 , 109 S Ct 3235 , 106 L Ed 2d 583 (1989).

I. STANDARDLESS, UNREVIEWABLE DEATH QUESTION

In 1991, the legislature amended the statute in the terms used by the majority in State v. Wagner, 309 Or 5 , 786 P2d 93 (1990) ('Wagner II)- Or Laws 1991, ch 885, § 2. The statute so enacted also is constitutionally defective, in my *74 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 legislation, simply asks the jury to answer “yes” or “no” to the query whether “defendant should” receive the death sentence. ORS 163.150(1)(b)(D). 1 The statute spells out what instructions must be given to the jury concerning their answer to the death question. They are to answer it “no” only if they find circumstances that one or more “believe would justify a sentence less than death.”

A. Standardless

Neither the judicial nor the later legislative amendment to the statute includes standards to be applied in answering that question. 2 The question simply asks the jury’s opinion. Unless one or more of the jury find as fact that it believes “no” is the answer, then “yes” is the answer to the “fourth” question. When “yes” is tbe 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 the penalty imposed by that answer.

Thus, in one county, aggravated murder defendants may all be subjected to the death penalty while crimes of the same magnitude are usually disposed of by life sentence without parole, at either the prosecutorial or jury verdict level, in another county.

B. Unreviewable

The resulting lack of judicial review of the penalty imposed under Oregon’s standardless “fourth” question is *75 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_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 Fourteenth Amendment 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).

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__US at__A punitive verdict ending a life is entitled to the same due process as must be applied to money damage verdicts. The standardless death question, and the lack of any review in Oregon of the answer a jury chooses to give to that question, are as lacking in due process and, therefore, as unconstitutional as the punitive damages awards overturned in Haslip and Oberg.

There are those who will argue that due process applied only to property interests in 1867 when the Fourteenth Amendment’s due process guarantees were adopted, not to the liberty interest of persons. What a callous disregard that would be of the reality that the Fourteenth Amendment was one of three contemporaneous amendments that transformed the legal status of former slaves from that of property to that of persons entitled to protection of their individual liberty interests as human beings. What a distortion of the reality of the constitutional changes based on the 19th century’s concept of civilization’s first principles and the outcome of the civil war it would be to say that the liberty interest protected by the Fourteenth Amendment extends to incarceration but not execution.

Whether or not death penalties have been subject to judicial review and modification historically, it is difficult to think of a human interest more worthy of due process protection than human life. And the reforms in the middle 1800’s changed the purposes of punishment to reformation and required penalties proportional to offenses at the time of *76 adoption of the Fourteenth Amendment’s Due Process Clause. See Article I, sections 15 and 16, of Oregon’s Constitution of 1857 (so providing).

Tuilaepa v. California and Proctor v. California,_ US_, 114 S Ct 2630 , 129 L Ed 2d 750 (1994), provide further support questioning the adequacy of Oregon’s “fourth” question and accompanying instruction. In California, the jury must, as in Oregon, find one or more of the statutorily prescribed special circumstances to be present in relation to the homicide that aggravate the murder before the defendant is even eligible for the death penalty. But that verdict, determining death eligibility, neither imposes the death penalty nor escapes post-verdict judicial review for due process purposes in California, unlike in Oregon where the answer to the standardless question escapes due process review.

After a finding of aggravating circumstances determines death eligibility, another California statute then requires a separate inquiry by the jury, an inquiry that selects, from among those eligible, which ones shall he executed, as also does the Oregon scheme. However, 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 was the question in Wagner II and the question copied from it in ORS 163.150(l)(b)(D). And they are generally of a more factual nature in California, not an open-ended inquiry as to “beliefs” about execution as in Oregon. Neither of those — judicial review nor the requirement for fact-based findings — processes or safeguards exists in Oregon.

Significant is the difference between the California scheme, that barely passed muster in Tuilaepa v. California, supra, and the Oregon scheme. A major difference is found in the automatic and mandatory judicial review of a death verdict at both the trial and appellate levels.

California Penal Code section 190.4(e) states:

“In every case in which the trier of fact has returned a verdict or finding imposing the death penalty, the defendant shall be deemed to have made an application for modification *77 of such verdict or finding pursuant to Subdivision 7 of Section 11. In ruling on the application, the judge shall review the evidence, consider, take into account, and be guided by the aggravating and mitigating circumstances referred to in Section 190.3, and shall make a determination as to whether the jury’s findings and verdicts that the aggravating circumstances outweigh the mitigating circumstances are contrary to law or the evidence presented. The judge shall state on the record the reasons for his findings.

“The judge shall set forth the reasons for his ruling on the application and direct that they be entered on the Clerk’s minutes. The denial of the modification of the death penalty verdict pursuant to subdivision (7) of Section 1181 shall be reviewed on the defendant’s automatic appeal pursuant to subdivision (b) of Section 1239. The granting of the application shall be reviewed on the People’s appeal pursuant to paragraph (6).”

But, no judicial review of the penalty as such is even permitted in Oregon. No judicial power exists to modify the penalty on its own merits in Oregon, unlike the California scheme approved in Tuilaepa. The due process principles and requirements announced in Haslip and Oberg, when applied to the Oregon death decision scheme, dictate that a death penalty assessed by a jury here must be vacated because death without due process is fundamentally unfair.

In the recent decision of the Supreme Court of the United States in Simmons v. South Carolina,_US_, 114 S Ct 2187 , 129 L Ed 2d 133 (1994) reversing a judgment of death, that Court spelled out the need for due process and a heightened standard of reliability. Although applying due process to a different question there, that Court indicates how it would apply due process to another of the questions answered by the jury in an aggravated murder case and thus, by analogy, how it would apply due process to invalidate a death decision resting on Oregon’s standardless, unreviewable “fourth” question. In that case, Justice Blackmun said for the Court that:

“Where a defendant’s future dangerousness is at issue, and state law prohibits his release on parole, due process requires that the sentencing jury be informed that the defendant is parole ineligible.”

*78 Justice O’Connor, concurring, said:

“ ‘Capital sentencing proceedings must of course satisfy the dictates of the Due Process Clause,’ Clemons v. Mississippi, 494 U.S. 738, 746 , 110 S.Ct. 1441, 1447 , 108 L.Ed.2d 725 (1990), and one of the hallmarks of due process in our adversary system is the defendant’s ability to meet the State’s case against him. Cf. Crane v. Kentucky, 476 U.S. 683, 690 , 106 S.Ct. 2142, 2146-2147 , 90 L.Ed.2d 636 (1986). In capital cases, we have held that the defendant’s future dangerousness is a consideration on which the State may rely in seeking the death penalty. See California v. Ramos, 463 U.S. 992, 1002-1003 , 103 S.Ct. 3446, 3454 , 77 L.Ed.2d 1171 (1983). But ‘where the prosecution specifically relies on a prediction of future dangerousness in asking for the death penalty,. . . the elemental due process requirement that a defendant not be sentenced to death “on the basis of information which he had no opportunity to deny or explain” [requires that the defendant be afforded an opportunity to introduce evidence on this point].’ Skipper v. South Carolina, 476 U.S. 1,5, n. 1 , 106 S.Ct. 1669, 1671, n. 1 , 90 L.Ed.2d 1 (1986), quoting Gardner v. Florida, 430 U.S. 349, 362 , 97 S.Ct. 1197, 1207 , 51 L.Ed.2d 393 (1977).* * *” Id. at 2200.

Justice Souter, concurring in the reversal said:

“The Eighth Amendment entitles a defendant to a jury capable of a reasoned moral judgment about whether death, rather than some lesser sentence, ought to be imposed. The Court has explained that the Amendment imposes a heightened standard ‘for reliability in the determination that death is the appropriate punishment in a specific case,’ Woodson v. North Carolina, 428 U.S. 280, 305 , 96 S.Ct. 2978, 2991 , 49 L.Ed.2d 944 (1976) (opinion of Stewart, Powell, and Stevens, JJ.) * * Id. at 2198.

And Justice Ginsburg said:

“This case is most readily resolved under a core requirement of due process, the right to be heard. Crane v. Kentucky, 476 U.S. 683, 690 , 106 S.Ct. 2142, 2146-2147 , 90 L.Ed.2d 636 (1986). When the prosecution urges a defendant’s future dangerousness as cause for the death sentence, the defendant’s right to be heard means that he must be afforded an opportunity to rebut the argument. See Skipper v. South Carolina, 476 U.S. 1, 5, n. 1 , 106 S.Ct. 1669, 1671, n. 1 , 90 L.Ed.2d 1 (1986). To be full and fair, that opportunity must include the right to inform the jury, if it is indeed the case, that the defendant is ineligible for parole.” Id. at 2199.

*79 Applying the criteria of the various justices yields the following result in this case. Because no one can tell what standard, if any, the Oregon jury may be using to answer the question whether they believe defendant must die, and because there is no review to be sure their answer is not excessive in the circumstances of the case, or that it is supported by law and evidence in that case, there is no meaningful right to be heard on the issue and no common agreement about what is the foundation for an individual moral or reasoned judgment. For those reasons, there is nothing to which to apply any heightened standard of reliability as to that open-ended question composed of a “should” and a “belief.” Not knowing what standard, if any, will be used, defendant has no ability to meet what a juror will use to decide whether defendant “should” or “should not” be executed, nor any opportunity to deny or explain that unknown quantity. 3

The California statute’s list 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.

*80 “(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.

“O’) 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).

Oregon has no such detailed list requiring that facts be found.

II. PROPORTIONALITY

Defendant maintains that he is entitled to a proportionality review. Defendant’s brief states “[t]his issue is based on defendant’s pretrial motion, which would, in essence, have required the trial judge to undertake a proportionality review of the imposition of the death” sanction. (Emphasis added.) Defendant’s brief also states that:

“The prosecutional decision to charge an individual with aggravated murder and to seek the death penalty based on a conviction of that crime is arbitrary and capricious. Negotiations are not being undertaken in a uniform manner throughout the state, resulting in the unfair and disparate treatment of individuals depending on geographical location. Defendant contends that this could have been documented in [the] trial court had the judge permitted defendant’s motion, and required the state to produce evidence of the charging decisions throughout the State of Oregon. At the very least, based on this argument, remand for a hearing [on defendant’s motion or on that statewide information previously sought] is required.”

Formerly, the United States Supreme Court has indicated that states are not required by due process to have post-sentence review of death penalty sentences on the basis of the proportionality of one individual sentence as against another. The case so holding arose in California where, as we *81 have already seen, the statute indeed requires that the trial judge review the sentence and grants judges power to modify the sentence both at the trial level and on appeal. Oregon has no such post-verdict review. Pulley v. Harris, 465 US 37 , 104 S Ct 871 , 79 L Ed 2d 29 , (1984). 4 In Pulley, the court held that “comparative proportionality review by an appellate court is [not] required in every case in which the death penalty is imposed and the defendant requests it.” 465 US at 50-51 . The court then said:

“Assuming that there could be a capital sentencing system so lacking in other checks on arbitrariness that it would not pass constitutional muster without comparative proportionality review, the 1977 California statute is not of that sort.” Id. at 51 .

The court then noted that the California statute required an independent determination by the trial judge who reviewed the evidence that was before the jury after the jury’s verdict and who was required to make findings and to state reasons for the findings on the record. Then the appellate court must review the trial judge’s refusal to modify the sentence, if that is the trial judge’s decision. However, the California scheme does not in so many words require that the review of the trial judge or of the appellate court be based on the proportionality of the sentence compared with other sentences within the jurisdiction. It calls for a judicial determination whether the evidence related to aggravation and mitigation makes the death verdict contrary to law or evidence presented. Ibid.

The sentencing jury may exact death when that is comparatively excessive in relation to other juries statewide, and, thus, is federally cruel and unusual because the Oregon process, even after Wagner v. Oregon, supra, permits the jury to make the death determination on a standardless and unreviewable basis.

I would hesitate long before saying that Oregon juries would act arbitrarily or capriciously. The death penalty scheme as amended by the legislature in 1991 nonetheless leaves them in a situation where they can do so free of review. Their decision is so unguided and unreviewed as to permit an arbitrary and capricious application rather than a reasoned, *82 individual moral judgment. In such circumstances, proportionality review would seem to be the only way to enforce the Eighth Amendment and its prohibition against administering death in cases having circumstances where it would be, in the federal court’s eyes, cruel and unusual punishment to execute the particular individual defendant. Accordingly, because Oregon does not employ the safeguards present in the Pulley case and because of the Court’s later decisions in Haslip and Oberg, observance of both due process and the Eighth Amendment require that proportionality review be undertaken on a statewide basis in Oregon death penalty cases. Whether that review is to be undertaken at the point where death or not death is determined, by the jury, or by the judge, or both, need not be determined here. That stage was not reached because defendant’s discovery request was, erroneously, denied. Moreover many states now make provision for a proportionality review. Wallace & Sorenson, Missouri Proportionality Review: An Assessment of a State Supreme Court’s Procedures in Capital Cases, 8 Notre Dame JL Ethics and Pub Pol’y, 281, 287 n 31 (1994). By statute, Oregon requires that sentences be proportional. ORS 161.025(1) in part provides:

“The general purposes of chapter 743, Oregon Laws 1971, are:

“(f) To prescribe penalties which are proportionate to the seriousness of offenses and which permit recognition of differences in rehabilitation possibilities among individual offenders.

“(g) To safeguard offenders against excessive, disproportionate or arbitrary punishment.”

Denial prevented even the possibility of operating this state’s death process up to federal standards.

For the foregoing reasons, I would hold that defendant’s death sentence in this case should be vacated and the case remanded for resentencing to “life imprisonment without the possibility of release or parole” under ORS 163.105-(l)(a)(b).

I respectfully dissent.

In State v. Wagner, 305 Or 115, 233, 235 , 752 P2d 1136 (1988) ('Wagner I) (Gillette, J., joined by Linde, J., dissenting), the deficiency still present in the statute that permits the jury to answer open-ended questions without directing them to the standards to be applied is pointed out. That deficiency still exists in spades leaving the death decision made here without due process, a grave matter indeed.

The statute requires that the jury be instructed to answer the question on the basis of what “one or more of 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. Ibid. It appears from the phrasing of the question that the jury is expected to answer “yes” for death unless the defendant carries a burden of producing evidence that impacts a juror’s belief to the contrary.

The “should” question is asked of jurors who, to remain on the jury, have already answered that they have no moral objections to the death penalty.

The issue also came up on habeas corpus, not direct appeal.