# State v. Wagner

> Oregon Supreme Court · February 26, 1988 · 305 Or. 115

URL: https://www.frixlaw.com/law-library/cases/9851451

## Case

- **Full name:** STATE OF OREGON, Respondent, v. JEFFREY SCOTT WAGNER, Appellant
- **Court:** Oregon Supreme Court
- **Decided:** February 26, 1988
- **Citations:** 305 Or. 115; 752 P.2d 1136; 1988 Ore. LEXIS 8
- **Precedential status:** Published
- **Opinion:** Dissent by Gillette
- **Judges:** Lent, Linde, Gillette
- **Cited by:** 80 later opinions in the Frix Law Library

## Citator (automated)

- **Red flag:** Abrogated on other grounds by Penry v. Lynaugh, 492 U.S. 302 (1989).
- Negative treatments: 2
- Distinguished by: 0
- Full citator and citing cases: https://www.frixlaw.com/law-library/cases/9851451

## How later opinions describe it (automated extraction)

- concluding that, “from the decisions of the [United States] Supreme Court[,] * * * our review must be to determine whether there was evidence from which the jury could have found affirmative answers to [the first] three questions and whether the jury acted according to the law…
- rejecting the invitation to construe Article I, section 10 of the Oregon Constitution, which guarantees injured persons a remedy in due course of law, as a due process clause

## Opinion text

GILLETTE, J.,
dissenting.
A majority of the court today concludes that defendant received due process of law under the Eighth and Fourteenth Amendments to the Constitution of the United States at his sentencing hearing. In so concluding, the court by interpretation limits the scope of “mitigating factors” that may be considered in connection with the three questions put in the sentencing statute to those mitigating factors which have some bearing on the questions. The court further concludes that the jury was correctly instructed with respect to the scope of its authority concerning evidence of mitigating circumstances and, finally, that in any event, no mitigating evidence offered with respect to the defendant or the crime he committed called for any further or different instructions to the jury than those actually given. For the reasons which follow, I respectfully disagree with the court as to all three of the foregoing conclusions and therefore dissent.
I
The present Oregon death penalty statute, ORS 163.150, is derived from the Texas statute approved in Jurek v. Texas, 428 US 262 , 96 S Ct 2950 , 49 L Ed 2d 929 (1976). *220 That case was one of five decided the same day. (The other four were Gregg v. Georgia, 428 US 153 , 96 S Ct 2909 , 49 L Ed 2d 859 (1976), Proffitt v. Florida, 428 US 242 , 96 S Ct 2960 , 49 L Ed 2d 913 (1976), Woodson v. North Carolina, 428 US 280 , 96 S Ct 2978 , 49 L Ed 2d 944 (1976) and Roberts v. Louisiana, 428 US 325 , 96 S Ct 3001 , 49 L Ed 2d 974 (1976).) All were cases involving the constitutionality of various death penalty statutes that had been enacted or amended in the wake of the Supreme Court’s earlier opinion in Furman v. Georgia, 408 US 238 , 92 S Ct 2726 , 33 L Ed 2d 346 (1972). Three of the statutes—those involved in the Georgia, Florida and Texas cases —were upheld. Two—those involved in the North Carolina and Louisiana cases—were struck down. The lead case among those that upheld statutes was Gregg v. Georgia, supra. Jurek v. Texas, supra, the case that dealt with the Texas statute from which the present Oregon statute was adopted, was a relatively short follow-up opinion based on Gregg .
The Texas statute that was upheld in Jurek v. Texas provided that a person convicted of capital murder could be sentenced to death if a jury impaneled for that purpose affirmatively answered the following three questions:
“(1) whether the conduct of the defendant that caused the death of the deceased was committed deliberately and with the reasonable expectation that the death of the deceased or another would result;
“(2) whether there is a probability that the defendant would commit criminal acts of violence that would constitute a continuing threat to society; and
“(3) if raised by the evidence, whether the conduct of the defendant in killing the deceased was unreasonable in response to the provocation if any, by the deceased.”
Tex. Code Crim. Proc. Ann. art. 37.071(b)(Supp. 1975-1976).
The Supreme Court found the Texas statute constitutional. It did so, however, only on the understanding that Texas law did not automatically require the imposition of the death penalty on any person convicted of capital murder who fit the three criteria, but rather also permitted the introduction of mitigating evidence during the sentencing phase:
“Texas law requires that if a defendant has been convicted of a capital offense, the trial court must conduct a separate sentencing proceeding before the same jury that tried the *221 issue of guilt. Any relevant evidence may be introduced at this proceeding, and both prosecution and defense may present argument for or against the sentence of death.”
Jurek v. Texas, supra, 428 US at 267. As the court further explained, id. at 271:
“But a sentencing system that allowed the jury to consider only aggravating circumstances would almost certainly fall short of providing the individualized sentencing determination that we today have held in Woodson v. North Carolina, post, at 303-305, to be required by the Eighth and Fourteenth Amendments. For such a system would approach the mandatory laws that we today hold unconstitutional in Woodson and Roberts v. Louisiana, post, p 325 [footnote omitted]. A jury must be allowed to consider on the basis of all relevant evidence not only why a death sentence should be imposed, but also why it should not be imposed.”
As already noted, the Texas statute asked three questions of the jury, as does the Oregon statute (with one modification in the Oregon statute which I address later). Concerning the Texas scheme, the Supreme Court concentrated only on the second of the three questions, i.e., the question of the probability that the defendant would commit criminal acts of violence in the future. This focus on the second question cannot be read as indicating that the Texas statute would have been regarded as constitutional if it had affirmatively provided that the question of mitigating factors could only be considered by the jury in connection with the second question, but not in connection with the other two. As the Court said itself, just before discussing the second statutory question, “[t]hus, the constitutionality of the Texas procedures turns on whether the enumerated questions allow consideration of particularized mitigating factors.” Id. at 272. (Emphasis supplied.) And, in a footnote at that same page, the Court specifically noted, with respect to this issue:
“The Texas Court of Criminal Appeals has not yet construed the first and third questions * * *; thus it is as yet undetermined whether or not the jury’s consideration of those questions would properly include consideration of mitigating circumstances. In at least some situations the questions could, however, comprehend such an inquiry. For example, the third question asks whether the conduct of the defendant was unreasonable in response to any provocation by the deceased. *222 This might be construed to allow the jury to consider circumstances which, though not sufficient as a defense to the crime itself, might nevertheless have enough mitigating force to avoid the death penalty—a claim, for example, that a woman who hired an assassin to kill her husband was driven to it by his continued cruelty to her. We cannot, however, construe the statute; that power is reserved to the Texas courts.”
Id. at 272 n 7.
From the foregoing I conclude that, even had there been no cases following it to further develop the idea, 1 Jurek u. Texas stands for the proposition that a statute which narrows the kind of homicides that can be declared capital homicides and which then further narrows the pool of defendants faced with the death penalty by identifying three aggravating factors that the jury must find to be present is constitutional, provided that it is also permissible for the defendant to offer and the jury to consider evidence of any kind that tends to mitigate against an affirmative answer to the three statutory questions. This seems to me to make eminent good sense. There surely are circumstances that would militate against an affirmative finding with respect to the first and third criteria, as well as the second, although the second was the only one discussed in the. Jurek opinion. (In addition to the example given by the Supreme Court with respect to the third criterion, it seems obvious that evidence concerning an offender’s background and circumstances could show that his mental condition, while not sufficient to constitute a defense under Oregon criminal law, was nonetheless such that a jury might not wish to find that he was guilty of the “deliberation” which the jury was required to find in order to give an affirmative answer to the first question.) The majority also seems to concede that Jurek stands at least for this limited proposition. However, the majority refuses to recognize that Jurek and the other cases decided the same day were only the beginning of the Supreme Court odyssey in the area of the death penalty and the scope of jury authority with respect to it.
The specific Jurek requirement that mitigating factors be considered with respect to the second question in the *223 Texas statute was written into the second question when Oregon adopted the Texas approach. For some reason, the drafters of the Oregon referendum seem to have concluded that the mitigating factors inquiry was pertinent only with respect to the second of the three questions to be put to the jury. As I think I have already demonstrated, Jurek does not say that. Neither, I think, do cases decided after Jurek imply that this is all that Jurek stands for. About the only argument to the contrary would come from Lockett v. Ohio, 438 US 586 , 98 S Ct 2954 , 57 L Ed 2d 973 (1978). At one point in that case, the Supreme Court plurality, referring to the Gregg group of cases, had this to say about Jurek :
“* * * Juj-gfc involved a Texas statute which made no explicit reference to mitigating factors. 428 US, at 272. Rather, the jury was required to answer three questions in the sentencing process, the second of which was ‘whether there is a probability that the defendant would commit criminal acts of violence that would constitute a continuing threat to society.’ * * * The statute survived the petitioner’s Eighth and Fourteenth Amendment attack because three Justices concluded that the Texas Court of Criminal Appeals had broadly interpreted the second question—despite its facial narrowness—so as to permit the sentencer to consider ‘whatever mitigating circumstances’ the defendant might be able to show. [Citations omitted.] None of the statutes we sustained in Gregg and the companion cases clearly operated at that time to prevent the sentencer from considering any aspect of the defendant’s character and record or any circumstances of his offense as an independently mitigating factor.”
Id. at 606-7. The foregoing is merely a description of the specific issue Jurek addressed. It in no sense intimates that, had the issue been squarely presented, the Court would not have held also that mitigating circumstances had to be considered for any other purpose that might lead the jury to conclude that imposition of the death penalty was inappropriate. Other statements made by the plurality in Lockett (and consistently relied upon in later opinions) lead me to this same conclusion, viz., that mitigating circumstances must be considered by the jury without limitation in order for the statutes to be constitutional:
“* * * [W]e conclude that the Eighth and Fourteenth Amendments require that the sentencer, in all but the rarest kind of capital case, [footnote omitted] not be precluded from *224 considering, as a mitigating factor, any aspect of a defendant’s character or record and any of the circumstances of the offense that the defendant proffers as a basis for a sentence less than death. [Footnote omitted.] * * * [A] statute that prevents the sentencer in all capital cases from giving independent mitigating weight to aspects of the defendant’s character and record and to circumstances of the offense proffered in mitigation creates the risk that the death penalty will be imposed in spite of factors which may call for a less severe penalty. * * *”
Id. at 604-5 (emphasis in original).
These statements by the plurality in Lockett suggested an even broader role for “mitigating circumstances” than the role implied in Jurek : “mitigating circumstances” included any facts that might lead a jury to conclude that an otherwise death-eligible defendant ought to receive a sentence less than death, and the jury had to be empowered so to conclude. That is, whatever the statutory scheme and whatever the evidence that affirmatively established that a defendant was death-eligible, the jury had to be free to spare the defendant if other evidence satisfied the jury that sparing him would be just.
Later cases absolutely made clear what the plurality opinion Lockett had implied. In each of these later cases, a majority of the full Court joined in adopting the Lockett plurality approach.
The first of these cases was Eddings v. Oklahoma, 455 US 104 , 102 S Ct 869 , 71 L Ed 2d 1 (1982). The defendant in Eddings was a 16-year-old youth who, with several companions, ran away from their Missouri homes. Their car subsequently was stopped by an officer of the Oklahoma Highway Patrol. Eddings shot and killed the officer with a shotgun. He was remanded to adult court for trial on a charge of murder in the first degree.
The Oklahoma statute, Okla. Stat. Ann. tit. 21, § 701.12 (West 1980), included a list of seven aggravating factors to be considered in determining whether or not to impose the death penalty. From among those factors, it was alleged that the murder Eddings committed fit three: it was especially heinous, atrocious or cruel, it was committed for the purpose of avoiding or preventing a lawful arrest and there was a *225 probability that the defendant would commit criminal acts of violence that would constitute a continuing threat to society. Okla. Stat. Ann. tit. 21, § 701.12 (4), (5) and (7).
In mitigation, Eddings presented substantial evidence at the hearing that he had led a troubled life. His parents had been divorced when he was quite young. He had lived with his mother until he was 14, during which time he received little or no supervision. The mother was an alcoholic and, possibly, a prostitute. Sent to live with his father at the age of 14, Eddings continued to be out of control. The only form of discipline the father was able to impose was physical punishment. Other evidence indicated that Eddings was emotionally disturbed in general, that his mental and emotional development were several years below his age, that he had a sociopathic antisocial personality and that approximately thirty percent of youths suffering from such a disorder grew out of it as they aged. Other evidence also suggested the possibility of reformation.
At the conclusion of the evidence, the trial judge (who was the responsible sentencer) weighed the evidence of aggravating and mitigating circumstances. He found that the state had proved the aggravating circumstances. As to the mitigating circumstance, however, the court made it clear that it considered the defendant’s youth to be the only pertinent mitigating circumstance and that such a circumstance could not outweigh the aggravating circumstances present. The judge sentenced Eddings to death. The case eventually reached the Supreme Court.
In its majority opinion, the Supreme Court began by quoting from the plurality opinion in Lockett quoted earlier in this opinion 305 Or at 223-24. The court then summarized the applicable rule as follows:
«* * * [T]he rule in Lockett followed from the earlier decisions of the Court and from the Court’s insistence that capital punishment be imposed fairly, and with reasonable consistency, or not at all. By requiring that the sentencer be permitted to focus ‘on the characteristics of the person who committed the crime,’ Gregg v. Georgia, supra, at 197, the rule in Lockett recognizes that ‘justice * * * requires * * * that there be taken into account the circumstances of the offense together with the character and propensities of the offender.’ [Citation omitted.] By holding that the sentencer in capital *226 cases must be permitted to consider any relevant mitigating factor, the rule in Lockett recognizes that a consistency produced by ignoring individual differences is a false consistency.”
Eddings v. Oklahoma, supra, 455 US at 112.
The Court then proceeded to apply the rule in Lockett to the case before it. The Court first noted that both the Oklahoma trial judge and the Oklahoma Court of Criminal Appeals had found that no mitigation evidence save that concerning the youth of the defendant was pertinent because no other evidence tended to provide a legal excuse from criminal responsibility. The Court said,
“We find that the limitations placed by these courts upon the mitigating evidence they would consider violated the rule in Lockett . [Footnote omitted.] Just as the State may not by statute preclude the sentencer from considering any mitigating factor, neither may the sentencer refuse to consider, as a matter of law, any relevant mitigating evidence. In this instance, it was as if the trial judge had instructed a jury to disregard the mitigating evidence Eddings proffered on his behalf. The sentencer, and the Court of Criminal Appeals on review, may determine the weight to be given relevant mitigating evidence. But they may not give it no weight by excluding such evidence from their consideration. [Footnote omitted.]
“Nor do we doubt that the evidence Eddings offered was relevant mitigating evidence. Eddings was a youth of 16 years at the time of the murder. Evidence of a difficult family history of emotional disturbance is typically introduced by defendants in mitigation. See McGautha v. California, 402 US 183, 187-188, 193 , [ 91 S Ct 1454 , 28 L Ed 2d 711 ] (1971). In some cases, such evidence properly may be given little weight. But when the defendant was 16 years old at the time of the offense there can be no doubt that evidence of a turbulent family history, of beatings by a harsh father, and of severe emotional disturbance is particularly relevant.”
Id. at 113-15. (Emphasis in original.) The foregoing fully illustrated for the first time how widely the net of “mitigating circumstances” under the Eighth and Fourteenth Amendments sweeps, in the view of the Supreme Court.
The next significant case in this line of cases was Skipper v. South Carolina, 476 US 1 , 106 S Ct 1669 , 90 L Ed 2d *227 1 (1986). In that case, the defendant had been convicted of capital murder and rape, and sentenced to death. At his sentencing trial, defendant offered but the trial court excluded testimony of jailers and a regular visitor regarding petitioner’s good behavior during the seven months he had spent in jail awaiting trial. On appeal, he argued that this evidence was evidence in mitigation of punishment that should have been considered in determining whether he should receive the death penalty.
The Supreme Court agreed. Speaking for six members of the Court, Justice White wrote,
“There is no disputing that this Court’s decision in Eddings requires that in capital cases, ‘ “the sentencer * * * not be precluded from considering, as a mitigating factor, any aspect of a defendant’s character or record and any oil the circumstances of the offense that the defendant proffers as a basis for a sentence less than death.” ’ Eddings, supra, 455 US, at 110 , 102 S Ct, at 874 (quoting Lockett, supra, 438 US, at 604 , 98 S Ct, at 2964 (plurality opinion of Burger, C. J.)) (emphasis in original). Equally clear is the corollary rule that the sentencer may not refuse to consider or be precluded from considering ‘any relevant mitigating evidence’ [citation omitted].”
Skipper v. South Carolina, supra, 476 US at 4 . Having restated the pertinent rules, which the court identified as “well established,” id., the Court then went on to hold that it was error of constitutional magnitude to exclude the evidence of mitigating circumstances relating to the defendant’s behavior during the months he spent in jail awaiting trial. Id. at 4-8 . The Court concluded:
“The exclusion by the state trial court of relevant mitigating evidence impeded the sentencing jury’s ability to carry out its task of considering all relevant facets of the character and record of the individual offender. The resulting death sentence cannot stand * *
Id. at 8 .
One year later, a unanimous court reversed yet another death penalty by relying on the Skipper/Eddings/ Lockett line of analysis. In that case, Hitchcock v. Dugger, 481 US 393 , 107 S Ct 1821 , 95 L Ed 2d 347 (1987), the defendant was accused of the strangulation death of a 13-year-old girl. *228 Throughout a variety of appeals that eventually reached the United States Supreme Court, he argued that the advisory jury and sentencing judge (which was the procedure followed in Florida) improperly had been precluded by law from considering certain evidence of mitigating circumstances that had been introduced. The Court described the evidence offered by the defendant in mitigation:
“In the sentencing phase of this case, petitioner’s counsel introduced before the advisory jury evidence that as a child petitioner had the habit of inhaling gasoline fumes from automobile gas tanks; that he had once passed out after doing so; that thereafter his mind tended to wander; that petitioner had been one of seven children in a poor family that earned its living by picking cotton; that his father had died of cancer; and that petitioner had been a fond and affectionate uncle to the children of one of his brothers. * * * In argument to the advisory jury, petitioner’s counsel referred to various considerations, some of which were the subject of factual dispute, making a sentence of death inappropriate: petitioner’s youth (he was 20 at the time of the murder), his innocence of significant prior criminal activity or violent behavior, the difficult circumstances of his upbringing, his potential for rehabilitation, and his voluntary surrender to authorities. * * * In contrast, the prosecutor told the jury that it was [to consider only certain statutory mitigating circumstances, and no others and the trial judge reinforced this impression by his instructions] * * * ”
Id. at__A unanimous Court, speaking through Justice Scalia, reversed, stating:
“We think it could not be clearer that the advisory jury was instructed not to consider, and the sentencing judge refused to consider, evidence of nonstatutory mitigating circumstances, and that the proceedings therefore did not comport with the requirements of Skipper v. South Carolina, 476 US 1 , 106 S Ct 1669 , 90 L Ed 2d 1 (1986), Eddings v. Oklahoma, 455 US 104 , 102 S Ct 869 , 71 L Ed 2d 1 (1982), and Lockett v. Ohio, 438 US 586 , 98 S Ct 2954 , 57 L Ed 2d 973 (1978) (plurality opinion). * * * In the absence of such a showing our cases hold that the exclusion of mitigating evidence of the sort at issue here renders the death sentence invalid. See Skipper, supra (evidence that defendant had adapted well to prison life); Eddings, supra (evidence of 16-year-old defendant’s troubled family history and emotional disturbance). * * * 99
*229 Id. at
The Supreme Court has thus with increasing clarity established that juries must be permitted to choose a sentence less than death based on any mitigating circumstances, not just those that apply directly to a particular state’s statutory criteria for death qualification. This rule has emerged from cases dealing with a wide variety of statutes involving one virtually identical to Oregon’s (the Texas statute in Jurek) and one designed in the same mold (the Oklahoma statute in Eddings.)
The way in which the majority deals with the cases that I have discussed is instructive as to the majority’s narrow (and, I think, constitutionally incorrect) reading of those decisions and the requirements of due process.
Concerning Eddings v. Oklahoma, the majority states as follows:
“* * * In Eddings , the Court had before it a statute that had been construed by the state court as excluding consideration of the defendant’s ‘turbulent family history,’ ‘beatings by harsh father,’ and ‘severe emotional problems’ connected with having ‘been raised in a neglectful, even violent family background.’ Despite the fact that certain commentators cited in Justice Linde’s dissent in this case question the continued vitality of Jurek because of Eddings , we find nothing to indicate that the Supreme Court of the United States is in agreement with those commentators.
“We do not construe our statute to exclude evidence of the kind of factors mentioned in Eddings.”
305 Or at 160-161.
I respectfully suggest that the foregoing quotation focuses on the wrong questions and, in any event, gives the wrong answer. For me, at least, Eddings should not be viewed as a case questioning the validity of Jurek . I assume, as does the majority, that Jurek is still good law. But Jurek was a case that focused on the constitutional permissibility of a particular statutory method of creating a class of death-eligible defendants. Eddings , on the other hand, was a case that assumed the constitutionally permissible creation of such a class and instead focused on those matters that a jury had to be permitted to consider in determining whether a member of *230 that death-eligible class should actually be executed. As to that second question—the only one with which my dissent is concerned—the majority will say no more than
“We consider that it would be the better practice for the trial court to instruct the jury with particularity that it is to consider mitigating evidence with respect to arriving at its answer to all three questions * *
305 Or at 167.
To the contrary, as I hope my review of the case law establishes, both the required scope of the jury’s consideration of mitigating evidence and its authority pursuant to that consideration are broader than the majority acknowledges. Indeed, one may fairly ask how the majority believes that evidence of a “turbulent family history,” “beatings by a harsh father,” or having “been raised in a neglectful, even violent family background” have anything to do with any of the three questions to be submitted to the jury under Oregon law. I respectfully submit that they do not and, if they do not but are nonetheless admissible under Oregon law (as the majority acknowledges), the jury has to be told something with respect to what it is to do with the information. The only thing it could be told is that it has the constitutional authority to answer one of the three statutory questions “no” (in spite of the fact that other evidence would justify a “yes” answer) and thereby reprieve a death-eligible defendant from the death penalty he otherwise would receive—an instruction which would, of course, depart from the statute.
The majority also dismisses Skipper v. South Carolina, supra:
“[Skipper] does no inore than to rule that a defendant must be allowed to show as a mitigating factor any aspect of his character or record and any of the circumstances of the offense that the defendant proffers as a basis for a sentence less than death. In other words, the sentencer must be allowed to consider any relevant mitigating evidence. That is what our statute allows.”
305 Or at 161.
Again, other language already quoted from the majority opinion is inconsistent with this statement. Whatever else it does, the majority is obligated to answer this question: if a *231 jury must consider all mitigating evidence, including mitigating evidence that does not bear any apparent relationship to any of the three statutory questions the jury must answer, what is the jury to do with such evidence and what is the range of its authority? It is particularly difficult to understand what the majority means when it refers to evidence “that the defendant proffers as a basis for a sentence less than death,” unless it believes the jury has some role to play in addition to answering the three questions.
The majority also says nothing that explains why Hitchcock v. Dugger, supra, does not require the result for which I argue. The majority simply says, with respect to that case:
“In that case, arising under Florida law, the trial judge instructed the jury not to consider evidence of mitigating circumstances not specifically enumerated in the Florida statute. The respondent asserted that the Florida Supreme Court had, in a decision postdating the petitioner’s conviction, held that the sentencer was not limited to the consideration of the statutory mitigating circumstances. The Court held that because the record disclosed that the trial judge in the case before the Court had assumed the statute limited the evidence that could be received and had so limited it, the petitioner was entitled to a new resentencing proceeding or a lesser sentence.
“We discover nothing in Hitchcock that is in conflict with the decision in Jurek or that would apply to the Oregon scheme.”
305 Or at 161.
Again, inasmuch as the continuing vitality of Jurek is not the crucial point, the majority’s comment with respect to that case is of no help. With respect to the balance of the majority’s description of Hitchcock , one comes away with the impression that the majority believes that all the Supreme Court did was to rule that the trial judge in that case had somehow made a mistake under Florida law. As my earlier discussion of the case indicates, however, the decision was a constitutional decision holding that the failure of the trial court to permit the jury to consider certain mitigating circumstances not identified as relating to any aggravating circumstance under Florida law was error of constitutional dimension requiring the vacation of a death sentence. Surely, *232 that constitutional ruling “would apply to the Oregon scheme,” or to the scheme of any other state.
The majority’s insistent focus upon whether or not Jurek has been overruled misses this point, with the result that its construction of the Oregon statutory scheme is at odds with present constitutional rules. In summary, I believe that the majority misunderstands and misapplies the line of cases beginning with Lockett and running through Eddings, Skipper and Dugger . All of those cases, without regard to the kind of statutory scheme with which they deal, require that a jury in a death sentencing proceeding be permitted to hear any mitigating circumstances relating to either the offender or the offense and further be permitted, based upon that evidence, to chose to reprieve an otherwise death-eligible offender from the supreme penalty. The most important part about this rule, as I have described its development, is that it proceeded from a plurality opinion in Lockett to a unanimous opinion in Dugger . Although the Supreme Court has had great difficulty in dealing with other aspects of the death penalty, see, e.g., McCleskey v. Kemp, 481 US 279 , 107 S Ct 1756 , 95 L Ed 2d 262 (1987) (racially disparate impact of sentences of death) and Lowenfield v. Phelps,_US_, 108 S Ct 546 , 98 L Ed 2d 568 (1988) (degree to which statute defining capital murder sufficiently narrows the pool of death-eligible defendants), it has achieved remarkable unanimity in the development of this part of the death penalty doctrine. 2
II
None of the foregoing necessarily requires holding that the Oregon statutory scheme is unconstitutional on its face. This court could so construe the statute as to permit the admission of all mitigating evidence and to require an instruction to the jury delineating the scope of the jury’s authority to reprieve an otherwise death-eligible defendant on the basis of that evidence.
*233 I do not here propose any particular solution. One solution perhaps would be to instruct the jury that, even if it concludes that all three statutory questions should be answered “yes,” it nonetheless should answer one of them “no” unless it unanimously concludes that the mitigating evidence does not call for a lesser penalty. A second alternative might have the jury answer a fourth, constitutionally-required question after the three statutory ones: After considering all the mitigating evidence, does the jury still unanimously conclude that the prisoner should be put to death, rather than spared? But the majority has offered no suggestion or language that would be consistent both with the statute and with the constitutional requirements.
It is true, as the majority doubtless recognizes, that to give the statute some construction such as the ones I have described probably would require that the sentence in this case be vacated and the matter be remanded for resentencing. That appears to me to be a small price to pay for establishing a set of statutory and constitutional directives to permit trial courts in the future to conduct constitutionally adequate sentencing proceedings that would avoid future case-by-case evaluations as to which piece of evidence satisfied which statutory and/or constitutional criteria. If the people of this state are to receive reliable enforcement of the death penalty, they deserve to have this aspect of the statutory scheme fully explored and its constitutional limitations declared now.
Ill
The jury instructions pertinent to the three statutory questions and the role of mitigating evidence were so brief that they may be set out here in full:
“The defendant has been found guilty of aggravated murder. Oregon law provides that the penalty for aggravated murder shall either—be either death or life imprisonment. You must assume that life imprisonment means imprisonment for the rest of the defendant’s life. You are not to consider or discuss any other possible meaning of life imprisonment.
“You will be given three questions that you must answer either ‘yes’ or ‘no’. Before any question can be answered ‘yes’, all twelve jurors must agree. If all twelve jurors cannot agree that a question should be answered ‘yes’, then the question *234 must be answered ‘no’. In answering the questions your answers must be based only upon the evidence received in this case and upon the instructions which I am now giving you.
“The first question asked by the law is:
“Was the conduct of Jeffrey Scott Wagner that caused the death of Jeri Koenig committed deliberately and with the reasonable expectation that the death of Jeri Koenig would result?
“The word ‘deliberately’ in this case means the act of mind which examines and considers whether a contemplated act should or should not be done. One acts deliberately when one acts in such a cool mental state, under such circumstances, and for such a period of time as to permit a careful weighing of the proposed decision. The law, however, does not prescribe a particular period of time for deliberation.
“The second question is:
“Is there a probability that Jeffrey Scott Wagner would commit criminal acts of violence that would constitute a continuing threat to society? In deciding the second question, probability means the occurrence of an event is more likely than not to occur. Here the event is the chance of the defendant committing criminal acts of violence. Probability does not mean that the occurrence of the event is certain.
“In determining this issue you shall consider any mitigating circumstances received in evidence including, but not limited to, the defendant’s age, the extent and severity of the defendant’s prior criminal conduct and the extent of the mental and emotional pressure under which the defendant was acting at the time the killing was committed.
“The third question asked by the law is:
“Was the conduct of Jeffrey Scott Wagner in killing Jeri Koenig unreasonable in response to the provocation, if any, by Jeri Koenig?
“In considering the issues submitted to you, you are to consider all of the evidence submitted to you in this trial. You shall give that evidence such weight as you decide according to the instructions of the court.
“The burden is upon the State to prove beyond a reasonable doubt the affirmative of each of the issues submitted to you.
Even under the majority’s construction of the pertinent constitutional requirements, these instructions were *235 deficient. The jury was specifically instructed only that it could consider mitigating circumstances with respect to the second question. That is not the law. As the discussion in part I of this dissent shows, the jury must be given far greater latitude in its use of mitigating circumstances. This jury was affirmatively misled as to its authority under the constitution. No sentence of death should be permitted to stand upon jury instructions so woefully inaccurate and incomplete. This defendant has not been accorded a sentencing trial even approaching that required by the Lockett/Eddings/Skipper/ Dugger line of cases.
IV
The majority might argue that, even if my understanding of the constitutional requirements is correct and my criticism of the instructions given to this jury well taken, the evidence in this case is so one-sided and overwhelming that any error committed would be harmless. For the reasons that follow, I do not think that “harmless error” satisfactorily disposes of this case.
In the first place, the concept of “harmlessness” is difficult to quantify in the context of Oregon’s first death penalty case. When all one knows is that the jury was never correctly advised as to the scope of its authority, any speculation with respect to how a properly-instructed jury would have performed its new and difficult task becomes highly problematical. 3
The second argument to be made is that there is evidence in this record of mitigating circumstances which, however sparse, should have generated appropriate instructions. The evidence shows that this defendant began difficulties with the law at an early age, displayed evidence of mental instability through most of his life, at least twice attempted suicide, may have felt required to turn to violent behavior as a *236 response to institutional settings in which he found himself because of early criminal activity, has made some significant efforts to become and remain employed, has significant artistic ability, is of above average intelligence and is still relatively young. I do not mean to suggest that, were I trying this case, I would find any of the foregoing considerations (whether viewed individually or collectively) as overcoming the state’s evidence with respect to each of the three questions or as independent justification for a reprieve from the death penalty. That decision is not my function. It is, instead, the function of an appropriately-instructed jury under the Oregon statutory scheme. No such jury has considered this evidence. One should do so. A second, appropriately-instructed jury might reach the same conclusion as did the jury in this case. However, then and only then will constitutional rules have been observed and any subsequent execution be entitled to that degree of respect which any such profound action should receive in a nation of laws.
For all of the reasons expressed in this dissenting opinion, I believe that the defendant’s sentencing proceeding was constitutionally infirm. Accordingly, I would vacate the sentence of death and remand the case to the trial court for a new sentencing hearing or, at the election of the district attorney, for entry of a new sentence of life imprisonment. Because the majority reaches a contrary conclusion, I respectfully dissent.
One further point seems to me to be worth making. No one familiar with the degree of conscientious effort applied to this case by every member of this Court could fairly question the sincerity of the views expressed by each of the opinions in this case or by those who adhere to those opinions. However, the fact that judges of reasonable intelligence and integrity can have reached such diametrically opposed views with respect to an issue as crucial as the role mitigating circumstances constitutionally are required to play in sentencing proceedings under statutes like Oregon’s demonstrates how desirable it is that the Supreme Court of the United States accept review of this or some similar case. The good faith disagreement that exists in this Court is no small matter; human lives are quite literally at stake. I would hope that that Court, newly blessed with a full complement of justices, would perceive that there is yet work to be done in this area of *237 constitutional law and would set about to complete that work forthwith.
I respectfully dissent.
Linde, J., joins in this dissenting opinion.
As the material that follows demonstrates, there were such cases, including one involving the Texas statute, Adams v. Texas, 448 US 38 , 100 S Ct 2521 , 65 L Ed 2d 581 (1980).
The majority’s reliance on certain language from Lowenfield v. Phelps, 305 Or at 165 is untenable. That case had nothing to do with the role of mitigating circumstances. The Court in Lowenfield specifically said it was faced with two issues only: “[wjhether a sentence of death may validly rest upon a single aggravating circumstance that is a necessary element of the underlying offense of first-degree murder, and whether the judge had coerced the sentence verdicts from the jury.”-US at-, 108 S Ct at 550 , 98 L Ed 2d 568 (1988).
No objection was made to any instructions in this case. Normally, I would regard that as disposing of any concern with respect to the instructions. However, the posture of the present proceedings as the first death penalty case to be tried under the new statutory scheme seems to me to call for us to exercise the widest latitude in defining what a court should instruct the jury and seeing to it that no person goes to his or her death unless a jury was adequately instructed. The dignity of any human life, even that which a state legitimately determines that it is entitled to end, deserves at least this degree of formality and rectitude.

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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/9851451. Public record. Not legal advice.