Petition for Writ of Certiorari — Robert Paul Langley, Jr., Petitioner v. Oregon

Appendix A

1a

Caution

As of: November 18, 2019 12:46 AM Z

State v. Langley

Supreme Court of Oregon

September 22, 2017, Argued and Submitted; August 16, 2018, Decided

SC S062353

Reporter

363 Ore. 482 *; 424 P.3d 688 **; 2018 Ore. LEXIS 638 ***

STATE OF OREGON, Plaintiff-Respondent, v.

ROBERT PAUL LANGLEY, JR., DefendantAppellant.

Subsequent History: Modified by, On

reconsideration by, Motion denied by State v.

Langley, 365 Or. 418, 2019 Ore. LEXIS 530 (Aug.

1, 2019)

Prior

History: [***1] CC

88C21624.

On

automatic and direct review of the sentence of

death imposed by the Marion County Circuit Court.

Mary Mertens James, Judge.

State v. Langley, 351 Ore. 652, 273 P.3d 901, 2012

Ore. LEXIS 204 (Mar. 29, 2012)

Disposition: The sentence of death is affirmed.

Core Terms

trial court, sentencing, assigned error, penaltyphase, murder, death sentence, prison, aggravated,

recusal, circumstances, mitigating evidence,

aggravating evidence, future dangerousness,

mitigating, cases, judicial conduct, presiding judge,

questions, contends, capital sentencing, defense

motion, disqualify, jurors, fourth-question,

appearance, provisions, impartial, inmates, bias,

beyond a reasonable doubt

Case Summary

Overview

HOLDINGS: [1]-In defendant's death penalty case,

the court properly denied defendant's motion for

recusal of the judge under Or. Rev. Stat. § 14.210

because nothing in the record showed that, during

the judge's previous employment with the

Department of Justice, she acted as an attorney in

defendant's prosecution or the appeals that

followed, nor was there any evidence that she

otherwise possessed a direct interest in defendant's

cases; [2]-The court properly admitted evidence

under Or. Evid. Code 403 of violence in prison

society because it assisted the jurors in

understanding whether defendant would face a

significant risk in prison of involvement in violent

acts against others and the use of weapons, and

thus, the State's evidence helped the jury

understand the probability that defendant would

commit criminal acts of violence in the future.

Outcome

The judgment was affirmed.

LexisNexis® Headnotes

Criminal Law & Procedure > Preliminary

Proceedings > Pretrial Motions &

Procedures > Disqualification & Recusal

HN1[ ] Pretrial Motions

Disqualification & Recusal

&

Procedures,

Under Or. Rev. Stat. § 14.260(1), a change of judge

I+

Criminal Law & Procedure > Preliminary

Proceedings > Pretrial Motions &

Procedures > Disqualification & Recusal

HN2[ ] Pretrial Motions

Disqualification & Recusal

&

Procedures,

A motion for change of judge under Or. Rev. Stat.

§§ 14.250 through 14.270 must be made at the time

of the assignment.

Criminal Law & Procedure > Preliminary

Proceedings > Pretrial Motions &

Procedures > Disqualification & Recusal

I+

Criminal Law &

Procedure > Appeals > Standards of Review

HN3[ ] Pretrial Motions

Disqualification & Recusal

&

HN4[ ] Legal Ethics, Judicial Conduct

As the text of Or. Code Jud. Conduct 3.10(A)(5)

makes clear, the associational prohibition is subject

to an exception for government lawyers. Although

judges who were previously non-governmental

attorneys can, indeed, be required in certain

circumstances to disqualify themselves from cases

based solely on employment-related associations

that they held before assuming the bench, judges

previously employed as government attorneys can

be required to do so only if the judges had, in their

prior capacities, personally participated as lawyers,

supervising attorneys, or public officials in the

cases that they are assigned to hear or if they had,

while in those positions, publicly expressed their

opinions concerning the merits of those matters.

Constitutional Law > ... > Fundamental

Rights > Criminal Process > Right to Jury Trial

Constitutional Law > ... > Fundamental

Rights > Procedural Due Process > Scope of

Protection

I+

can take place in any proceeding, based on a

motion and affidavit setting out a good-faith belief

that the party cannot receive a fair and impartial

hearing before the judge in question; no specific

ground for the movant's belief need be alleged. The

statutes also contain several important restrictions.

First, parties are prohibited from submitting more

than two applications in any cause, matter or

proceeding under this section. § 14.260(6), Or. Rev.

Stat. § 14.270. Second, a motion to change judge

under Or. Rev. Stat. §§ 14.250 through 14.270 must

be made at the time of the trial court judge's

assignment to the case. § 14.270. Oral notice of

intent to file such a motion will suffice, provided

that the actual motion and affidavit are filed not

later than the close of the next judicial day.

I+

363 Ore. 482, *482; 424 P.3d 688, **688; 2018 Ore. LEXIS 638, ***1

Appendix A

2a

HN5[ ] Criminal Process, Right to Jury Trial

The right to public trial by an impartial jury

expressly guaranteed by Or. Const. art. I, § 11

includes the right to a fair and impartial trial. The

Due Process Clause of the Fourteenth Amendment,

U.S. Const. amend. XIV, guarantees that no state

shall deprive any person of life, liberty, or property,

without due process of law.

Procedures,

Criminal Law &

Procedure > Sentencing > Capital Punishment

An appellate court reviews the ruling on

defendant's motion to disqualify a judge based on

Or. Rev. Stat. § 14.210(1) for legal error.

Evidence > Burdens of Proof > Proof Beyond

Reasonable Doubt

Legal Ethics > Judicial Conduct

I+

Criminal Law & Procedure > Trials > Burdens

of Proof > Prosecution

HN6[ ] Sentencing, Capital Punishment

Page 2 of 35

Appendix A

3a

363 Ore. 482, *482; 424 P.3d 688, **688; 2018 Ore. LEXIS 638, ***1

E+

Evidence > Relevance > Relevant Evidence

HN7[ ] Relevance, Relevant Evidence

Under Or. Evid. Code 401, "relevant evidence"

means evidence having any tendency to make the

existence of any fact that is of consequence to the

determination of the action more probable or less

probable than it would be without the evidence. In

terms of evidentiary admissibility, that standard

represents a low bar, meaning that evidence is

relevant so long as it increases or decreases—even

slightly—the probability that a fact will be

consequential to the determination of an action.

And under Oregon law, whether a fact is disputed

or not is of no moment for purposes of relevancy

when the evidence that is intended to establish that

fact will aid decisionmakers in their determinations.

Evidence > Relevance > Exclusion of Relevant

Evidence > Confusion, Prejudice & Waste of

Time

E+

The State is obliged to prove an affirmative case

regarding the first three statutory inquiries under

Or. Rev. Stat. § 163.150(1)(d) beyond a reasonable

doubt. There is no burden of proof attached to the

fourth question. § 163.150(1)(d).

HN9[ ] Abuse of Discretion, Evidence

Under Or. Evid. Code 403, a court may exclude

relevant evidence if its probative value is

substantially outweighed by the danger of unfair

prejudice. As used in Rule 403, the term "unfair

prejudice" does not refer to evidence that is simply

harmful to the opponent's case; indeed, all evidence

presented at trial is intended to prejudice one side

or the other, i.e., to increase the likelihood that the

adverse party will not prevail. Instead, "unfair

prejudice" refers to an undue evidentiary tendency

to suggest a decision on an improper basis,

commonly, although not always, an emotional one.

Thus, successful motions to exclude evidence under

Rule 403 will encompass situations in which the

trier of fact will be improperly affected by factors

unrelated to the fact of consequence for which a

particular piece of evidence has been offered. In

such cases, the party seeking exclusion of that

evidence bears the burden of persuasion. An

appellate court reviews a trial court's decision

regarding Rule 403 for abuse of discretion.

Criminal Law &

Procedure > Sentencing > Capital Punishment

E+

E+

Evidence > Relevance > Relevant Evidence

Criminal Law &

Procedure > Sentencing > Capital Punishment

HN8[ ] Sentencing, Capital Punishment

HN10[ ] Sentencing, Capital Punishment

In the context of future dangerousness for purposes

of the death penalty, evidence regarding the violent

characteristics of prison society directly pertains to

defendants who potentially face the death penalty,

insofar

as

that

evidence

demonstrates

characteristics of the institution in which they will

presumably live out their days.

In the context of future dangerousness for purposes

of the death penalty, evidence of a prison's violent

institutional environment can assist jurors in

understanding whether a defendant would face a

significant risk in prison of involvement in violent

acts.

Criminal Law & Procedure > ... > Standards of

Review > Abuse of Discretion > Evidence

Criminal Law &

Procedure > Sentencing > Capital

Punishment > Aggravating Circumstances

Page 3 of 35

Appendix A

4a

363 Ore. 482, *482; 424 P.3d 688, **688; 2018 Ore. LEXIS 638, ***1

HN11[ ] Capital Punishment, Aggravating

Circumstances

For defendants whose capital crimes predated the

statutory inclusion of aggravating evidence as a

factor in fourth question determinations, the ex post

facto holding in Guzek III reimposed several

constraints on the penalty-phase process. First, it

prohibits trial courts from admitting into evidence

aggravating facts relevant solely to the fourth

question. Second, it prohibits trial courts from

instructing jurors to consider such evidence in

reaching the fourth-question determination.

I+

Procedure > Appeals > Standards of Review

HN13[ ] Jury Deliberations, Ability to Follow

Instructions

As a matter of law, an appellate court presumes that

the jurors followed instructions absent an

overwhelming probability that they were unable to

do so.

Criminal Law &

Procedure > Sentencing > Capital

Punishment > Mitigating Circumstances

Criminal Law & Procedure > Trials > Jury

Instructions > Particular Instructions

E+

I+

Criminal Law & Procedure > Trials > Jury

Instructions > Particular Instructions

HN14[ ] Capital

Circumstances

Criminal Law & Procedure > ... > Jury

Instructions > Particular Instructions > Use of

Particular Evidence

In cases where a capital sentencing jury had not

been instructed to consider any mitigating aspect of

defendant's life not necessarily related causally to

the offense in determining whether the defendant

should be sentenced to death, the appropriate

remedy was remand for new penalty-phase

proceedings.

Instructions,

Limiting

Where evidence is admissible for one purpose and

not another, it is generally error—albeit not

necessarily prejudicial error—for a trial court to

refuse a limiting instruction that would minimize

the jury's use of that evidence for the inadmissible

purpose. Among the exceptions that trump that

general rule, however, are when a proffered

instruction: (1) is not a correct statement of the law;

or (2) is a correct statement of the law, but is

nevertheless covered by the trial court's other

instructions.

Criminal Law & Procedure > Juries &

Jurors > Jury Deliberations > Ability to Follow

Instructions

Criminal Law &

Mitigating

Criminal Law & Procedure > ... > Jury

Instructions > Particular Instructions > Theory

of Defense

I+

HN12[ ]

Jury

Instructions

Punishment,

HN15[ ] Particular Instructions, Theory of

Defense

A party litigant is entitled to have the court instruct

the jury upon his theory of the case as formulated in

properly requested instructions which correctly

state the law, and which are founded upon the

pleadings and the proof in the case.

Criminal Law & Procedure > Trials

E+

I+

Criminal Law & Procedure > Trials > Jury

Instructions > Limiting Instructions

HN16[ ] Criminal Law & Procedure, Trials

Page 4 of 35

363 Ore. 482, *482; 424 P.3d 688, **688; 2018 Ore. LEXIS 638, ***1

When required by United States Supreme Court

rulings on the constitutionality of a criminal trial

procedure, state courts may comply with such

rulings by including, if appropriate, an additional or

alternative step not otherwise articulated in existing

state statutes, provided that the step in question is

neither precluded by, nor inconsistent with, those

statutes.

Criminal Law &

Procedure > Sentencing > Capital

Punishment > Aggravating Circumstances

Criminal Law &

Procedure > Sentencing > Capital

Punishment > Mitigating Circumstances

I+

Criminal Law &

Procedure > Sentencing > Imposition of

Sentence > Statutory Maximums

HN17[ ] Capital Punishment, Aggravating

Circumstances

Apprendi/Blakely applies only to facts. But the

fourth question under Or. Rev. Stat. §

163.150(1)(b) does not involve any determination

of fact. Instead, in answering the fourth question,

the jury weighs aggravating factors against

mitigating factors. The fourth question does not

carry a burden of proof, because it does not present

an issue subject to proof in the traditional sense;

rather, it frames a discretionary determination for

the jury. Because the fourth question does not

involve a determination of fact, Apprendi/Blakely

does not require the State to prove it beyond a

reasonable doubt.

Counsel: Karen A. Steele, Salem, argued the cause

and filed the briefs for appellant. Also on the brief

was Jeffrey E. Ellis, Portland.

Timothy A. Sylwester, Assistant Attorney General,

argued the cause for respondent. Timothy A.

Sylwester, Joanna L. Jenkins, and Lauren P.

Robertson, Assistant Attorneys General, Salem,

Appendix A

5a

filed the brief for respondent. Also on the brief

were Ellen F. Rosenblum, Attorney General, and

Benjamin Gutman, Solicitor General.

Judges: Before Walters, Chief Justice, and

Nakamoto, Flynn, and Nelson, Justices, and Brewer

and Baldwin, Senior Justices pro tempore.*

Opinion by: NAKAMOTO

Opinion

[*484] [**693] NAKAMOTO, J.

Defendant was convicted on 16 counts of

aggravated murder in 1989. This court affirmed 15

of those convictions in State v. Langley, 314 Ore.

247, 839 P2d 692 (1992), adh'd to on recons, 318

Ore. 28, 861 P2d 1012 (1993) (Langley I), but

vacated defendant's death sentence and remanded

his case for a new penalty-phase trial. See id. (so

stating). The court has since done so twice more,

first in State v. Langley, 331 Ore. 430, 16 P3d 489

(2000) (Langley II), and, most recently, in State v.

Langley, 351 Ore. 652, 273 P3d 901 (2012)

(Langley III). This automatic and direct review

proceeding arises as the result of the [***2] death

sentence imposed on defendant in 2014 following

his fourth penalty-phase trial.

On review, defendant raises 77 assignments of

error, only 12 of which warrant discussion here.

Those 12 issues encompass four broad contentions:

(1) the penalty-phase trial court judge was, or

appeared to be, biased and should not have presided

over the proceeding; (2) the court erroneously

admitted evidence not specific to defendant

regarding the second capital sentencing question set

out at ORS 163.150(1)(b)(B) (whether there is a

probability that defendant would commit criminal

acts of violence constituting a "continuing threat to

society"); (3) the court failed to expressly preclude

* Balmer,

Kistler, and Duncan, JJ., did not participate in the

consideration or decision of this case.

Page 5 of 35

363 Ore. 482, *484; 424 P.3d 688, **693; 2018 Ore. LEXIS 638, ***2

jury consideration of aggravation evidence

regarding the fourth capital sentencing question set

out at ORS 163.150(1)(b)(D) (whether defendant

[**694] "should receive a death sentence"); and

(4) the court erroneously applied sentencing-only

remand provisions in capital cases arising before

the United States Supreme Court's decision in

Penry v. Lynaugh, 492 U.S. 302, 109 S Ct 2934,

106 L Ed 2d 256 (1989). For the reasons that

follow, we affirm defendant's sentence of death.

I. FACTUAL AND PROCEDURAL

BACKGROUND

This matter comes before the court following the

fourth jury determination that defendant should be

sentenced to death for the [***3] 1987 aggravated

murder of Anne Gray. At the time of Gray's death,

defendant—while serving a term of incarceration

for crimes not at issue here—lived in a cottage on

the grounds of the Oregon State Hospital in [*485]

Salem, where he voluntarily participated in a lowsecurity Correctional Treatment Program for

mentally and emotionally disturbed inmates. The

program was designed to help inmates nearing the

end of their prison terms—like defendant—to

transition back into the community through

extensive psychological counseling, training in job

and independent living skills, and general

assistance in establishing productive post-prison

lives.

Gray—a neighbor of defendant's girlfriend—

disappeared on December 10, 1987. The same day,

defendant enlisted his girlfriend's help in

transporting a large, awkward bundle wrapped in a

comforter from Gray's apartment to the home of

defendant's aunt. In April 1988, Gray's decomposed

body was found buried in a shallow grave located

in the aunt's backyard. The discovery of Gray's

body was facilitated in large part by the discovery a

day earlier of defendant's second victim, Larry

Rockenbrant, one of defendant's acquaintances.1

1 Rockenbrant had disappeared in April 1988 after reportedly going

out to meet defendant, and his bludgeoned remains were found

shortly thereafter buried behind defendant's Oregon State Hospital

Appendix A

6a

Gray had died from asphyxiation, her [***4] body

tightly tied into a fetal position by multiple

bindings around her wrists, ankles, torso, and legs;

her head was duct-taped to cover her mouth and

nose, and a shoestring-type ligature was knotted

tightly around her neck.

In December 1989, a jury found defendant guilty of

aggravated murder in the death of Gray and

sentenced defendant to die. In 1992, this court

affirmed 15 of defendant's 16 aggravated murder

convictions, but it vacated his [*486] death

sentence on the ground that the trial court had

failed to give a proper jury instruction on the

consideration and use of mitigating evidence.

Langley I, 314 Ore. 247, 839 P.2d 692.

A second penalty-phase proceeding followed, and

defendant was again sentenced to death for Gray's

murder. In 2000, this court vacated that death

sentence on direct review, concluding that the trial

court had erred by (1) refusing to allow defendant

to waive any ex post facto objection to retroactively

considering a true-life sentencing option in his case

and (2) refusing to instruct the jury on that

sentencing option. Langley II, 331 Ore. 430, 16

P.3d 489.

On remand for a third penalty-phase proceeding,

defendant was once again sentenced to death—after

going through seven different defense attorneys and

cottage. The shallow grave into which Rockenbrant's body had been

placed was marked by a note identifying it as "Cottage 18 garden

plot. Please leave alone." Defendant was returning to his cottage as

hospital staff were investigating the so-called "garden plot" and fled

in the automobile that had belonged to Rockenbrant after staff

ordered him to stop and speak with them. Upon learning of

Rockenbrant's murder, the daughter of defendant's aunt contacted

police authorities concerning a suspiciously large hole that defendant

had dug in her mother's backyard that previous winter.

The aggravated murder convictions for Rockenbrant's death that

followed were later reversed and remanded on direct review. See

State v. Langley, 314 Ore. 511, 840 P2d 691 (1992) (so holding). On

remand, defendant and the state reached a deal in which defendant

agreed to a stipulated facts trial—after which he was again convicted

on multiple counts of aggravated murder—in exchange for a life

sentence with a chance for parole after 30 years. Those convictions

and that sentence are not at issue in this case.

Page 6 of 35

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Appendix A

7a

being ordered to proceed as [***5] a pro se

bias and/or appearance of bias due to Judge

litigant. On direct review in 2012, this court

James' former employment with the ODOJ and

concluded that the trial court had erred by not

relative to the Gray, Rockenbrant and Langleysecuring a valid waiver of defendant's right to

related matters[.]" (Assignment of Error No.

counsel, and defendant's case was remanded for yet

13.)

another penalty-phase proceeding. Langley III, 351 A. Procedural Background

Ore. 652, 273 P.3d 901.

On April 6, 2012, Judge Jamese Rhoades, Presiding

[**695] In May 2014, after considering for a Judge of the Marion County Circuit Court, filed a

fourth time whether defendant should be executed circuit court form titled Criminal Assignment

for the murder of Gray, a jury again sentenced Notice as part of the run-up to defendant's latest

defendant to death for that crime. Our opinion now penalty phase proceeding. In that document, Judge

focuses on four different aspects of that 2014 Rhoades assigned Judge Mary Mertens James to

proceeding.

preside over defendant's remanded sentencing trial.

II. ASSIGNMENTS OF ERROR REGARDING

Before assuming their positions on the bench, both

JUDICIAL BIAS AND RECUSAL

judges had worked as government lawyers: Judge

Rhoades as an attorney in the Marion County

We begin with defendant's contention that the District Attorney's Office and Judge James as an

assigned trial court judge should not have presided assistant attorney general [***7] in the Oregon

over his latest penalty-phase trial. On direct appeal, Department of Justice's (DOJ) general counsel and

defendant has tendered more than 20 assignments trial divisions.

of error that assert the penalty-phase trial judge

was, or appeared to be, biased and that defendant's Defendant's newly appointed defense counsel

motions for her removal or recusal were apparently learned of that assignment on Monday,

erroneously denied. Of those assignments of error, April 23, 2012, and, on Friday, April 27, 2012,

we address the following four:

filed two motions seeking Judge James's removal

from the case. The first, captioned as "Motion for

"Presiding Judge Rhoades erred in failing to Change of Judge," cited as its authority ORS

're-set' [defendant's] ORS 14.260 challenges 14.250 to 14.270. In a nutshell, under certain

upon this Court's vacating [defendant's]death conditions, those statutes prohibit a circuit court

sentence and remanding to the Circuit Court for judge from hearing a matter when a party or

resentencing[.]" (Assignment of Error No. 12.) attorney timely files a motion that establishes that

the "party or attorney believes that such party or

[*487] "Presiding Judge [***6] Rhoades

attorney cannot have a fair and impartial trial or

erred by denying [defendant's] Motion to

hearing before such judge. In such case the

Disqualify Judge James pursuant to ORS

presiding judge for the judicial district shall

14.250-14.270[.]" (Assignment of Error No. 7.)

forthwith transfer the cause, matter or proceeding to

"Presiding Judge Rhoades erred by denying another judge of the court[.]" ORS 14.250.

[defendant's] Motion for Cause or to Recuse

[*488] The second of defendant's removal-related

Judge James pursuant to ORS 14.210[.]"

motions was based on the fact that Judge James had

(Assignment of Error No. 8.)

been employed by the DOJ during the period that

"Presiding Judge Rhoades erred in failing to the DOJ had represented the state while defendant

grant [defendant's] Motion No. 39, in which appealed his convictions and sentences. In that

[defendant] raised additional facts and motion, captioned as a "Motion to Disqualify Judge

information related to Judge James' conflict, for Cause or to Recuse Judge," defendant relied

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363 Ore. 482, *488; 424 P.3d 688, **695; 2018 Ore. LEXIS 638, ***7

Appendix A

8a

primarily on ORS 14.210, which, among other

things, [***8] prohibits a judge from presiding

over a matter if the judge "has been attorney in the

action, suit or proceeding for any party." ORS

14.210(1)(d). However, an important caveat

attached to the prohibition set out in ORS

14.210(1)(d). Notwithstanding the particular

circumstances articulated in that statute,

disqualification would be deemed waived unless

the motion for disqualification had been made "as

provided by statute or court rule." ORS 14.210(2).

division. I then became attorney in charge of

labor and employment where I advised state

agencies in labor and employment matters and

represented agencies in administrative hearings

and interest arbitration, that sort of thing. I did

not have any contact with any of the divisions

or units of the Department of Justice that may

have been involved in any of the litigation

involving Mr. Langley, had absolutely no

contact with any of that[.]"

Judge James, therefore, declined to recuse herself.

Defendant's motions were heard by Presiding Judge

Rhoades; defendant raised no objections to Judge

Rhoades's participation in that proceeding based on

her prior employment with the county prosecutor's

office. [**696] In May 2012, Rhoades denied both

the "Motion for Change of Judge" and the "Motion

to Disqualify Judge for Cause," indicating that the

first was "[u]ntimely & successive," while writing

with regard to the second, "Untimely. Successive.

Authorities not on point." Judge Rhoades's ruling

that the new filings were successive was based on

the fact that defendant previously had relied on

ORS 14.250 through 14.270 to secure the removal

of Marion County judges Leggert and Barber

during his 2004 sentencing proceedings.

In March 2014—nearly two years later and

shortly [***10] before the commencement of

defendant's new penalty-phase trial—defense

counsel filed Motion No. 39, essentially a second

request to disqualify Judge James that sought

reconsideration of the previous disqualification

denials. In the course of arguing that motion before

Presiding Judge Rhoades, defense counsel

acknowledged that the aim of the new motion was

essentially the same as its predecessors, albeit more

articulately stated and supported. Among other

things, defendant argued for the first time that

Judge James was required to recuse herself

pursuant to the Oregon Code of Judicial Conduct.

Defendant relied on former Judicial Rule (JR) 2106(A)(2) (2012),2 which provided, in relevant

part, that judges must disqualify themselves when

they have

"served as a lawyer in the matter in

controversy, or a lawyer with whom the judge

previously was associated served during the

association as a lawyer in the matter[.]"

Two months later, at the first status conference on

the record, Judge James invited further

discussion [***9] concerning defendant's motions

for her removal. At that time, Judge James

acknowledged that she and Judge Rhoades had, at

some point as part of the case assignment process,

discussed whether she, James, could impartially

preside over defendant's case. Judge James then

discussed her previous employment history with the

DOJ, its lack of intersection with defendant's

previous appeals, and why it would be

inappropriate for her to recuse herself:

Defense counsel also added several elements to his

previous statutory argument for change of judge

based on ORS 14.260. He argued that (1) the

prohibition set out at ORS 14.260(5) against more

than two applications for a change of judge had

been "reset" with the advent of the new sentencing

"I was an employee of the Oregon Department proceeding and (2) his original motion

of Justice from October of 1983 to March of

1984, I believe—I mean [*489] of '94, and my

assignments * * * started out in general 2 At the time of defendant's motion, the Code of Judicial Conduct

business and I then transferred to the civil trial had been revised, and the analogous rule that applied was Rule

3.10(A)(5), which we later discuss.

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Appendix A

9a

should [***11] be deemed timely because he had

filed it at the first opportunity that he could, i.e., the

day that he was appointed to represent defendant.

absence of such screening now created an

appearance of partiality. Defendant cited three

specific instances of Judge James's past work as a

DOJ lawyer or current activity as a judge that, in

[*490] Presiding Judge Rhoades, however, denied his view, established actual bias or conflict of

the motion. She issued an order that read, in part:

interest: her representation of the state in an

"Regarding disqualification for cause, Judge employment case brought by a state employee,

Rhoades denies the motion, finding that Judge Weinstein, whom the state later called as a witness

James did not have any association with and in defendant's trial; her appearance in a case on

was not involved in any division or units or behalf of the MacLaren School for Boys; and her

with any attorneys who were involved in this association with [*491] a charity dedicated to

case while she was employed as an assistant supporting and honoring [***13] State Police

attorney general at the Oregon Department of personnel and their families.

Justice.

Defendant's motion was assigned to out-of-county

"Regarding Defendant's motion for change of Senior Judge Gregory Foote and scheduled to be

judge, Judge Rhoades denies the motion and heard later on the same day that it had been

finds that ORS 14.250-.270 does not re-set at a submitted. Defense counsel, however, requested a

new sentencing phase under ORS 163.150. set-over of that hearing, arguing that, because his

Judge Rhoades also finds that the available co-counsel had drafted the motion in question,

challenges were applied to Judge Leggert and defense counsel was unprepared. Judge Foote

Judge Barber in 2004 and, thus, have been granted defendant's request and reset the matter to

exhausted. Furthermore, the motion for change be heard the following day. Although the hearing

of judge was untimely, because Defendant filed on that motion had now been set over to May 22,

his first motion, under ORS 14.250-.270, 2014, defendant's penalty-phase trial had not been

[**697] on April 24, 2012, while the time to similarly postponed, and, on May 21, 2014, the

file had expired on or about April 7, 2012, parties presented closing arguments and the matter

within 24 hours of the appointment of Judge was submitted to the jury. The jury reached its

James to this case."

verdict later that afternoon, concluding that

On May 20, 2014, as the new penalty-phase defendant should be sentenced to death. The next

proceeding neared its end, defendant submitted yet day, Judge Foote heard the parties' arguments and

another set [***12] of reconsideration motions denied defendant's recusal-related motion for

seeking Judge James's removal, as well as transfer reconsideration.

B. Change of Judge under ORS 14.250 through

14.270

E+

We first address the assignments of error—numbers

7 and 12—related to defendant's unsuccessful

motion for a change of judge under ORS 14.250

through 14.270. HN1[ ] Under ORS 14.260(1), a

change of judge can take place in any proceeding,

based on a motion and affidavit setting out a goodfaith [***14] belief that the party cannot receive a

fair and impartial hearing before the judge in

question; no specific ground for the movant's belief

I

of the entire case to a judge appointed from outside

the Marion County Circuit Court. Defendant also

asked that his motion be sent to the Oregon

Supreme Court for assignment of a conflict-free

judge to hear it. In his motions, defendant again

argued that Judge James should be removed

because, during the time when she had worked for

the DOJ in its trial and employment divisions, the

DOJ had been extensively involved in litigating

appellate matters related to defendant without a

formal screening mechanism to separate James

from those matters. Defendant maintained that the

Page 9 of 35

363 Ore. 482, *491; 424 P.3d 688, **697; 2018 Ore. LEXIS 638, ***14

need be alleged. The statutes also contain several

important restrictions. First, parties are prohibited

from submitting "more than two applications in any

cause, matter or proceeding under this section."

ORS 14.260 (6); ORS 14.270. Second, a motion to

change judge under ORS 14.250 through 14.270

must be made at the time of the trial court judge's

assignment to the case. ORS 14.270.3 Oral [*492]

notice of intent to file such a motion will suffice,

provided that the actual "motion and [*493]

affidavit are filed not later than the close of the next

judicial day." Id.

Appendix A

10 a

For purposes of this opinion, we may assume,

without deciding, that defendant could seek a

change of judge anew on remand, despite having

utilized the change of judge procedure before the

remand. Even so, the terms of the statute and our

precedent lead us to conclude that the trial court

correctly denied defendant's motion as untimely

filed under ORS 14.270.

By its terms, ORS 14.270 currently provides a strict

timeframe in which to move for a change of judge:

"An affidavit and motion for change of judge to

hear the motions and demurrers or to try the

On review, defendant first contends that Judge

case shall be made at the time of the

Rhoades erred in ruling that, under those

assignment of the case to a judge for trial or

provisions, defendant's ability to change judges in

for hearing upon a motion or demurrer. Oral

the proceedings below had already been statutorily

notice of the intention to file the motion and

exhausted. Defendant argues that, pursuant to the

affidavit shall be sufficient compliance with

principle announced by the Court of Appeals in

this section providing that the motion and

Allen [**698] v. Premo, 251 Ore. App. 682, 284

affidavit are filed not later than the close of the

P3d 1199 (2012), his ability to seek a change of

next judicial day."

judge should be deemed to have been reset

(Emphasis

added.)

following remand of his previous death sentence

for a new penalty-phase trial. Second, defendant

An examination of the statutory framework within

contends that his motion for a change should have

been granted because his counsel's initial motion— which the current time limitation in ORS 14.270

although [***15]

untimely—was nevertheless was put into place reveals that the legislature

submitted as soon as was practicable, given that repeatedly [***16] has limited the ability of

Judge James's assignment took place before legal litigants to request a change of judge. See Stevens v.

Czerniak, 336 Ore. 392, 401, 84 P3d 140 (2004) (in

representation had been appointed for defendant.4

determining legislative intent of a statute, this court

considers statute's context, which includes, among

other things, the statutory framework within which

3 To be precise, the temporal requirement of ORS 14.270 can vary

somewhat according to a judicial district's population. ORS the law was enacted). When ORS 14.270 was

14.260(4), for example, provides that, for judicial districts with a originally made part of the Oregon Revised Statutes

population of 200,000 or greater, the affidavit and motion for change in 1955, the statutory time limit set by the

of judge "shall be made at the time and in the manner prescribed in

legislature for filing the same motion to disqualify

ORS 14.270." At the same time, ORS 14.260(5) provides that in

judicial districts with a smaller population—between 100,000 and was nearly unlimited, in that it could be filed

200,000—the affidavit and motion must be made "at the time and in virtually any time before commencement of a

the manner prescribed in ORS 14.270 unless the circuit court makes hearing or trial:

local rules under ORS 3.220 [adopting the alternative procedure

described in ORS 14.260(2)]." Because the Marion County Judicial

District (District 3) has a population over 200,000, ORS 14.260(5) is

inapplicable here.

4 In his reply brief to this court, defendant also argues for the first

time on appeal that he never personally received a copy of the notice

assigning Judge James to his case. Defendant asserts that he has

consistently contended as much throughout this matter and points to

various places in the record to support that position. Having searched

defendant's references to the record, however, we have been unable

to find any argument to that end. Consequently, we decline to

consider that argument, on the ground that it was not preserved

below.

Page 10 of 35

363 Ore. 482, *493; 424 P.3d 688, **698; 2018 Ore. LEXIS 638, ***16

Appendix A

11 a

"In any county of the State of Oregon where

personal, but not necessarily legal, reasons. We

there is a presiding judge who hears motions

think it follows that it does not matter whether

and demurrers and assigns cases to the other

a party's lawyer was present at the time of the

departments of the circuit court for trial, the

assignment, or even if a party was represented

affidavit and motion for change of judges to

by counsel. In either case, the motion to remove

hear the motions and demurrers or to try the

a judge, or at least oral notice of intent to file

case may be made at any time, either before or

such a motion, 'shall be made at the time of the

after the assignment of the case for trial, and

assignment.'"

either before a hearing upon a motion or

demurrer or before the commencement of trial Id. at 207-08. Thus, in this case, although defendant

had no appointed lawyer at the time that Judge

of the said cause[.]"

James was assigned to preside over the penaltyFormer ORS 14.270 (1955) (emphasis added). But phase retrial, defendant was required to file a

in 1959, the legislature significantly shortened that motion for a change of judge no later than April 7,

timeframe by nullifying a defendant's ability to 2012, the day after Judge James was assigned.

disqualify a judge if the judge had already ruled on

any substantive [***17] request or demurrer in the This court acknowledged in Pena that the results of

case, other than a motion for extension of time. See its holding may appear harsh. But, at the same time,

Ore. Laws 1959, ch 667, § 2 (so stating). Ten years the court concluded that such an outcome is

later, the legislature further shortened the required by the plain text of the ORS 14.270:

applicable timeframe by adding to ORS 14.270 the

"We are aware that our reading of the statute as

text that currently requires motions to disqualify a

making individual parties, whose legal counsel

judge to be made "at the time of the assignment of

is absent (or nonexistent), responsible for

the case." See Ore. Laws 1969, ch 144, § 1

giving a statutory notice or suffering the loss of

(amending statute as noted).

an important statutory right seems harsh.

However, the words of the statute compel that

Those amendments to the statutory scheme do not

reading. It may be that the legislature assumed

run afoul of a party's rights to take action under the

that counsel would be present at [***19] the

statutes. That is so, this court has noted, because the

pivotal moment, but the words of the statute do

provisions of ORS 14.250 to 14.270 reflect an

not contain that assumption explicitly, and do

extension of "legislative [*494] grace" to litigants

not require that counsel be present."

under which it is unnecessary for the parties to

demonstrate that some source of law—such as a

345 Ore. at 208 n 3. Until the legislature alters ORS

state or federal constitution—requires removal of a

14.270, HN2[ ] a motion for change of judge

judge. State v. Pena, 345 Ore. 198, 203, 191 P3d

659 (2008). Regardless of an assigned judge's under ORS 14.250 through 14.270 must be made at

actual fairness or impartiality, those statutes allow a the time of the assignment, which did not occur

party—under limited circumstances—to remove the below. The trial court correctly denied defendant's

judge from a matter when either the party or the belated motion.

[**699] party's lawyer believes that the judge

cannot provide a fair and impartial trial. Id. As this [*495] C. Disqualification for Cause under ORS

court observed in Pena, by doing so, the legislature 14.210 and Code of Judicial Conduct

"provided parties and lawyers an opportunity,

In addition to arguing that it was error not to

one that is not constitutionally or otherwise

change the trial judge under ORS 14.250 through

required, [***18] to remove a judge for

14.270, defendant also argues that his motions to

Page 11 of 35

363 Ore. 482, *495; 424 P.3d 688, **699; 2018 Ore. LEXIS 638, ***19

disqualify Judge James for cause were erroneously

denied below. Broadly speaking, defendant

contends that, in addition to the fact that James was

previously employed as a DOJ attorney during the

same period as the Gray and Rockenbrant murder

prosecutions, the following factors militate for the

general proposition that Judge James should have

been disqualified for cause from hearing his case:

(1) her previous representation of state officials in

the Weinstein employment action, when the state

called Weinstein as a witness in his trial; (2) her

previous representation of the MacLaren School for

Boys; and (3) her association with the Oregon State

Police Foundation.

Defendant [***20] notes that, when James was

employed with the DOJ, the DOJ had connections

to his murder trial. First, the DOJ represented the

Mental Health Division, Oregon State Hospital,

Oregon Department of Corrections, and MacLaren

School for Boys, all of which had provided

witnesses for the state in defendant's murder trials.

Defendant contends that, during that period, James

had to have worked with other DOJ attorneys who

appeared in matters stemming from defendant's

murder cases. Second, the DOJ provided direct

assistance to the Marion County District Attorney's

Office in its prosecution of defendant. Defendant

suggests that James was among that group of

attorneys, based on the appearance of her name in

DOJ billing records that had been previously

supplied

to

defendant.

When

defendant

subsequently sought the names of DOJ attorneys

who had specifically assisted in his prosecution, the

DOJ responded that it was unable to locate specific

documents directly responsive to defendant's

request, but noted that "many attorneys" whose

names were contained in the previous list also had

performed services at the request of the Marion

County District Attorney's Office. Finally,

defendant notes that the [***21] DOJ provided

representation for the state in other matters during

defendant's direct appeals of his convictions.

[*496] Defendant argues that, in light of those

contacts that the DOJ had with his case, and

Appendix A

12 a

without an overt screening mechanism between the

DOJ's various divisions, James's position as an

attorney with the DOJ [**700] had to have caused

her to have multiple contacts with matters related to

defendant. Defendant also asserts that Judge James

failed to fully reveal such contacts when she was

assigned to pre-side over defendant's penalty-phase

proceedings.

Defendant also points to James's participation in a

1990 employment action brought by Weinstein,

who had run the Correctional Treatment Program at

the state hospital during the time in which

defendant had participated in that program, against

his supervisors. More than 20 years later, during

defendant's latest penalty-phase trial, Weinstein

testified as a witness for the state, after which

James advised the parties that she had a vague

recollection of being involved as an attorney in a

civil matter involving the witness. Following that

disclosure, neither party queried James further

concerning her role in that case or raised an

objection [***22]

at that time. Defendant

nevertheless later argued that James's work on the

Weinstein case had created an actual conflict

because the parties involved in that matter were

also involved as witnesses in the criminal case

against defendant or in investigations related to the

wrongful-death actions that followed defendant's

murders.

The Weinstein employment case arose following

defendant's murder of Gray and Rockenbrant. In

July 1989, after Weinstein's supervisors reassigned

him and gave him different duties, Weinstein filed

an employment action against those individuals. As

state employees, Weinstein's supervisors were

represented by James in her capacity as a DOJ

attorney at that time. Thus, James had actively

opposed Weinstein, on behalf of her clients.

In the complaint initiating his employment action,

Weinstein had alleged that "the act of reassigning

him to other duties was motivated by his

discussions with members of the Oregon legislature

and expressions of his opinions." Despite the text of

Page 12 of 35

363 Ore. 482, *496; 424 P.3d 688, **700; 2018 Ore. LEXIS 638, ***22

Finally, defendant argues that James's association

with the State Police Foundation as a board

member is relevant to recusal and should have been

revealed below. Defendant notes that the state

police (1) constituted the lead investigating agency

in defendant's cases and (2) assisted the

Marion [***24] County District Attorney's Office

in its prosecution of defendant.

[*498] 1. ORS 14.210(1)(a) and (d)

I+

With regard to Judge James's representation of the

MacLaren School for Boys, defendant primarily

relies on a PACER printout that was not part of the

record below. The printout shows that, in a civil

rights matter captioned Wentz v. Grubbs, et al.,

James appeared once to file an affidavit in support

of a stipulated motion for an extension of time.

Defendant apparently now seeks to link that contact

between James and the MacLaren School for Boys

to the records from defendant's tenure as a

MacLaren inmate admitted in evidence at

defendant's penalty phase proceeding. Defendant

contends that James had been obliged to reveal her

MacLaren connection.

provisions from earlier versions of the Oregon

Code of Judicial Conduct and of the American Bar

Association Model Code of Judicial Conduct in

effect when Judge James was first assigned to

preside over his penalty-phase trial.

HN3[ ] We review the ruling on defendant's

motion to disqualify Judge James based on ORS

14.210(1) for legal error. See [**701] State ex rel

Kafoury v. Jones, 315 Ore. 201, 205-06, 843 P2d

932 (1992) (analyzing statutes governing change of

judge to determine whether trial court correctly

identified legal issue). On review, defendant does

not appear to argue based on the record that Judge

James was either a party or else had a direct interest

in his case. See ORS 14.210 (1)(a) (a judge who

was "a party [***25] to or directly interested in the

action, suit or proceeding" cannot serve in the

matter). Instead, defendant focuses his argument on

ORS 14.210 (1)(d), which provides that a judge

"shall not act as judge if the judge has been

attorney in the action, suit or proceeding for any

party." Defendant contends that, as a former

attorney for the DOJ, Judge James was disqualified

from serving as the trial judge, given her alleged

connections to the prosecution of this case and the

Rockenbrant case.

I

Weinstein's complaint, defendant contends that

Weinstein's reassignment had to have [*497]

directly resulted from defendant's murders, a fact,

defendant implies, that in turn must have caused

James to [***23] have substantial contact with

materials directly related to defendant while

representing Weinstein's superiors. Defendant

argues that James improperly downplayed her

connection to events in his case that were the result

of her role in Weinstein's action.

Appendix A

13 a

Yet in this case, there is no dispute that Judge

James was not an attorney of record in the appeals

that defendant had pursued and that the DOJ had

opposed on behalf of the state. And, when

Based on Judge James's roles set out above, Presiding Judge Rhoades denied defendant's motion

defendant now contends that it was error not to seeking reconsideration of his motions to remove

remove Judge James from his case (or for her not to Judge James as the trial judge in March 2014, she

recuse herself) under ORS 14.210(1) and Codes of did not find that Judge James had acted as an

Judicial Conduct. Specifically, defendant relies on attorney in defendant's criminal cases. Rather,

ORS 14.210(1)(a) and (d), which, respectively, Judge James explained that she had had no

expressly prohibit judges from acting in matters connections with the prosecution in defendant's

where the judge "is a party to or directly interested cases, and Judge Rhoades found that "Judge James

in the action, suit or proceeding" or "has been did not have any association with and was not

attorney in the action, suit or proceeding for any involved in any division or units or with any

party." Defendant also relies on disqualification attorneys who were involved in this case while she

Page 13 of 35

363 Ore. 482, *498; 424 P.3d 688, **701; 2018 Ore. LEXIS 638, ***25

was employed [***26] as an assistant attorney

general at the Oregon Department of Justice." In

arguing to the contrary, defendant arranges and

then connects disparate points to hypothesize that

Judge James's status as a former DOJ employment

attorney for the Oregon State Hospital and its

supervisors (in Weinstein's case) and for the

MacLaren School for Boys (in a motion for

extension of time)—and later as a State Police

Foundation Board member—inexorably led to

contact with parts of defendant's aggravated murder

case. The difficulty with that proposition, however,

is that the objective evidence [*499] fails to

support defendant's inference that she participated

as an attorney in some way in the prosecution of his

criminal cases.

As noted earlier, ORS 14.210(1)(a) and (d) require

judicial disqualification if a judge was "a party to or

directly interested in" or "has been an attorney in"

the action or proceeding. We conclude that the

record supports Presiding Judge Rhoades's finding

and that defendant's arguments based on ORS

14.210(1)(a) and (d) are simply unsupported by the

evidence. Nothing in the record shows that, during

Judge James's previous employment with the DOJ,

she acted as an attorney in defendant's prosecution

or the appeals that followed, [***27] nor is there

any evidence that she otherwise possessed a direct

interest in defendant's cases.

Appendix A

14 a

concerning a party or has personal knowledge

of disputed evidentiary facts concerning the

proceeding;

"(2) the judge served as a lawyer in the matter

in controversy, or a lawyer with whom the

judge previously was associated served during

the association as a lawyer in the matter, or the

judge or the lawyer has been a material witness

in the matter[.]"

Defendant also cited ABA Model Code, Rule

2.11(A)(6)(a) (2011), which, as set out by

defendant, similarly provided:

"(A) A judge shall disqualify himself or

herself [***28] in any proceeding in which the

judge's impartiality might [*500] reasonably

be questioned, including but not limited to the

following circumstances:

"* * * *

[**702] "(6) The judge:

"(a) served as a lawyer in the matter in

controversy, or was associated with a lawyer

who participated substantially as a lawyer in

the matter during such association[.]"

On review, defendant contends that those code

provisions and the facts establish that Judge James

was disqualified from serving as the trial judge and

should have disqualified herself because her

impartiality could reasonably be questioned. Before

addressing the substance of defendant's arguments,

2. Code of Judicial Conduct

we note that, when defendant sought removal of

In arguing that the presiding judge should remove Judge James in 2014 based on the Oregon Code of

Judge James from his case in 2014, defendant Judicial Conduct, JR 2-106(A)(1) had been

relied for the first time on provisions of the Oregon superseded by a new version of the code that went

Code of Judicial Conduct and the ABA Model into effect in December 2013. The new version of

Code of Judicial Code, citing versions in effect the rule was Rule 3.10(A)(5). That rule broadly

when Judge James was assigned as the trial judge. requires—like its predecessor—that judges

Specifically, he relied on former JR 2-106(A)(1) disqualify themselves in any proceeding in which

and (2) (2012) of the Oregon Code, which the judge has previously served as a lawyer in the

provided:

matter they are presiding over. But, with regard to a

"(A) A judge shall disqualify himself or herself judge's previous association with other lawyers

in a proceeding in which the judge's involved in the matter, the new rule significantly

impartiality reasonably may be questioned, clarifies the permissible metes and bounds of

including but not limited to instances when

the [***29] judge's involvement as a governmental

"(1) the judge has a bias or prejudice

Page 14 of 35

363 Ore. 482, *500; 424 P.3d 688, **702; 2018 Ore. LEXIS 638, ***29

Appendix A

15 a

lawyer:

"A judge shall disqualify himself or herself in

any proceeding in which a reasonable person

would question the judge's impartiality,

including but not limited to the following

circumstances:

"* * * *

"(5) The judge:

In re Fadeley, 310 Ore. 548, 563, 802 P2d 31

(1990) (emphasis added). In Fadeley, for example,

this court concluded that the appearance of honesty

in a judicial election had been compromised after a

candidate

personally

solicited

monetary

contributions for his campaign in violation of the

Code of Judicial Conduct in effect at the time. The

court's conclusion, however, was in part driven by

the certainty with which the act itself gave rise to

"(a) Served as a lawyer in the matter in the appearance of impropriety:

controversy, or, unless paragraph (5)(b)

applies, was associated with a lawyer who

"There is, in the context of in-person

participated substantially as a lawyer in the

solicitation of campaign funds, a certainty of

matter during such association;

an appearance of impropriety and a high

degree of likelihood of overreaching or undue

"(b) Served in governmental employment and,

influence by the requesting judge. The state has

in such capacity, participated personally either

a fundamental interest in avoiding those

as a lawyer or as a supervising lawyer in the

consequences, an [***31] interest that it has

matter in controversy, or participated

vindicated by promulgating Canon 7 B(7)

personally as a public official concerning the

[expressly providing that judges may not

matter, [*501] or has publicly expressed in

'personally solicit campaign contributions']."

such capacity an opinion concerning the merits

of the matter[.]"

Id. at 568 (emphasis added).

Rule 3.10(A)(5) (emphasis added). We need not

decide which version of the code applies, however, Here, however, that degree of certainty is missing

because the result we reach is the same under either from the factual underpinnings of defendant's

arguments regarding disqualification for cause.

version.

Like the rule of judicial [*502] conduct at issue in

Turning to the merits of defendant's code-based Fadeley, JR 2-106(A) and Rule 3.10(A) proscribe

arguments, we consider first whether Judge James judicial involvement by reference to concrete, wellwas actually biased and was required to recuse defined situations that, on an objective level, would

herself because she had personal knowledge of clearly appear improper if they arose, whether

disputed facts in defendant's case, JR 2-106(A)(1), [**703] actual bias was present or not. As with

or had previously served as lawyer in that matter, defendant's statutory disqualification argument, we

JR 2-106(A)(2). We have [***30] long viewed the note that Presiding Judge Rhoades found that Judge

judiciary's duty to cultivate and maintain an image James lacked "any association with and was not

of propriety as a boundary that must not be violated involved in any division or units or with any

if the public is to have continued confidence in the attorneys who were involved in this case while she

workings of our courts:

was employed as an assistant attorney general at the

Oregon Department of Justice." There is again an

"The stake of the public in a judiciary that is

absence of any evidence that Judge James had

both honest in fact and honest in appearance is

personal knowledge of the facts in this case or that

profound. A democratic society that, like ours,

she acted as an attorney in any of defendant's

leaves many of its final decisions, both

criminal cases.

constitutional and otherwise, to its judiciary is

totally dependent on the scrupulous integrity of We next consider defendant's contention that Judge

that judiciary."

James was disqualified from serving as the trial

Page 15 of 35

363 Ore. 482, *502; 424 P.3d 688, **703; 2018 Ore. LEXIS 638, ***31

judge based on an [***32] appearance of bias by

virtue of her association with the DOJ lawyers who

represented the state in defendant's criminal

appeals. See JR 2-106(A)(2) (2012) ("a lawyer with

whom the judge previously was associated served

during the association as a lawyer in the matter");

Rule 3.10(A)(5)(a) ("unless paragraph (5)(b)

applies, was associated with a lawyer who

participated substantially as a lawyer in the

matter"). We conclude that the association

provision was not applied as broadly to former

government lawyers in 2012 as defendant contends

and that the new rule in effect in March 2014

clarified that aspect of the rule.

HN4[ ] As the text of Rule 3.10(A)(5) now makes

clear, the associational prohibition is subject to an

exception for government lawyers. Although judges

who were previously non-governmental attorneys

can, indeed, be required in certain circumstances to

disqualify themselves from cases based solely on

employment-related associations that they held

before assuming the bench, judges previously

employed as government attorneys can be required

to do so only if the judges had, in their prior

capacities, personally participated as lawyers,

supervising attorneys, or public officials in the

cases that they are assigned to hear or if they had,

while in [***33] those positions, publicly

expressed their opinions concerning the merits of

those matters. Although those tenets were first

expressed as Rule 3.10(A)(5) in December 2013,

the notion [*503] that government-lawyersturned-judges are not generally viewed as having

had prior associations with other governmental

lawyers within the same agency is not a new one.

In the 1990 commentary to the ABA Model Code

of Judicial Conduct, Canon 3(E)(1)(b) (in part

addressing judicial disqualification based on

previous associations in the practice of law), the

ABA observed that "a lawyer in a government

agency does not ordinarily have an association with

other lawyers employed by that agency[.]"

Now, as then, that observation remains instructive.

For purposes of defendant's argument that

Appendix A

16 a

Presiding Judge Rhoades should have determined

that Judge James was disqualified (or that Judge

James should have recused herself) in light of the

Code of Judicial Conduct, we decline to view every

former government lawyer employed by the DOJ

who now sits on the bench as having had a

constructive association with every other DOJ

lawyer based solely on the fact of their common

employment with the DOJ. Here, that means that,

even under the associational [***34] provision in

the 2012 version of the code, for defendant to have

prevailed on his motion seeking Judge James's

disqualification, defendant had to establish that

James personally had participated as a lawyer in

some aspect of defendant's criminal cases. As

already noted in our discussion above, however,

defendant has failed to do so. As a result, we hold

that defendant's arguments for disqualification

based on the Code of Judicial Conduct, either under

the rule in the older version of the Code or in the

current version, are not well-taken.5

D. Constitutional Arguments for Disqualification

Having rejected defendant's statutory and codebased arguments regarding judicial [**704]

disqualification, we now address the arguments that

he raises under the state and federal constitutions.

Defendant relies on Article I, Section 11, of the

Oregon Constitution, [*504] which provides, in

part: "In all criminal prosecutions, the accused shall

have the right to public trial by an impartial jury[.]"

See State ex rel Ricco v. Biggs, 198 Ore. 413, 428,

255 P2d 1055 (1953) (noting that HN5[ ] right to

"public trial by an impartial jury" expressly

guaranteed by Article I, section 11, includes right to

fair and impartial trial); State v. Leland, 190 Ore.

5 The

same is true for defendant's reliance on Canon 2, Rule

2.11(A)(6) of the ABA Model Code of Judicial Conduct (2011).

Although defendant's opening brief fails to set out the rule in its

entirety, the rule is, with only minor exceptions, virtually identical to

the text of Rule 3.10(A)(5) (2013) and subject, therefore, to the same

analysis. Having examined and rejected defendant's arguments

regarding judicial disqualification under the Oregon rule, it is

unnecessary to repeat that process in order to also reject the notion

that the ABA Model Code of Judicial Conduct similarly required

Judge James's disqualification in this matter.

Page 16 of 35

363 Ore. 482, *504; 424 P.3d 688, **704; 2018 Ore. LEXIS 638, ***34

598, 608, 227 P2d 785 (1951) (observing that a

"fair trial" means, in part, trial before an impartial

judge). Defendant also relies on the Due Process

Clause of the Fourteenth Amendment to the United

States Constitution, which guarantees [***35] that

no state shall "deprive any person of life, liberty, or

property, without due process of law." See, e.g.,

Johnson v. Mississippi, 403 U.S. 212, 216, 91 S Ct

1778, 29 L Ed 2d 423 (1971) (noting that "[t]rial

before an 'unbiased judge' is essential to due

process").

Appendix A

17 a

defendant relies on the standard set out in JR 2106(A) (2012) or Rule 3.10(A) of the Oregon Code

of Judicial Conduct—"a reasonable person would

question the judge's impartiality"—for the reasons

already discussed, we reject defendant's Article I,

Section 11, argument.

As for defendant's Due Process Clause argument, in

Caperton v. A.T. Massey Coal Co., Inc., 556 U S

868, 129 S Ct 2252, 173 L Ed 2d 1208 (2009), the

United States Supreme Court has examined when

the appearance of bias on the part of the judge

According to defendant, the rights inherent in those becomes so significant that a party is deprived of

constitutional provisions inure to criminal due process. In Caperton, the Supreme Court

defendants through the protective disqualification discussed a series of circumstances not generally

provisions of ORS 14.210, and, by failing to adhere present at common law in which the appearance of

to its requirements, Judge James and Presiding bias objectively required judicial recusal on due

Judge Rhoades violated his constitutional rights. process grounds. The Court [***37] broadly

Defendant relies on the same evidence and described those circumstances as ones "in which

hypotheses described earlier in the context of his experience teaches that the probability of actual

statutory and code-based arguments. As this bias on the part of the judge or decision maker is

opinion has already recognized, however, the too high to be constitutionally tolerable." 556 U.S.

record supports Presiding Judge Rhoades's finding at 877 (quoting Withrow v. Larkin, 421 U.S. 35, 47,

below that "Judge James did not have any 95 S Ct 1456, 43 L Ed 2d 712 (1975)).

association with and was not involved in any

division or units or with any attorneys who were First, the Court highlighted cases in which a judge's

involved in this case while she was employed as an financial interest in the outcome of a matter,

assistant attorney general at the Oregon Department although less than what would have been

of Justice." That finding undermines defendant's considered personal and direct at common law,

contrary argument that the record reflects evidence nevertheless required recusal based on the

of actual bias corresponding with the proscriptions perception that those interests might tempt the

set out at ORS 14.210 and renders his constitutional judge to skew the outcome of a case for one party

arguments as unavailing as his statutory arguments. or the other. Id. at 876-79, citing Tumey v. Ohio,

273 U.S. 510, 47 S Ct 437, 71 L Ed 749, 5 Ohio

In addition [***36] to his contention that Judge Law Abs. 159, 5 Ohio Law Abs. 185, 25 Ohio L.

James was actually biased, defendant also relies on Rep. 236 (1927) (where town mayor presided over

judicial disqualification by virtue of an appearance certain bench trials in "mayor's court" and received

of bias, such that disqualification of Judge James salary supplement for doing so that was derived

was required as a matter of law under Article I, directly from court costs assessed upon conviction,

section 11. This court has yet to analyze the due process required mayor's recusal from such

concept of apparent bias through the lens of the proceedings); Ward v. Village of Monroeville, 409

Oregon Constitution, and defendant does not offer U.S. 57, 93 S Ct 80, 34 L Ed 2d 267 (1972) (where

any independent standard for evaluating whether town mayor [**705] presided over municipal

the circumstances present [*505] an appearance of traffic cases and resulting fines upon conviction

bias that would violate a criminal defendant's right constituted major revenue stream for town, due

to trial by "an impartial jury." To the extent that process required mayor's recusal from such

Page 17 of 35

363 Ore. 482, *505; 424 P.3d 688, **705; 2018 Ore. LEXIS 638, ***37

proceedings); and Aetna Life Insurance Co. v.

Lavoie, 475 U.S. 813, 106 S Ct 1580, 89 L Ed 2d

823 (1986) (in case involving bad faith refusal to

pay insurance claim, where state supreme court

justice cast deciding vote to uphold punitive

damage award against [*506] defendant insurance

company, while [***38] at the same time serving

as lead plaintiff in nearly identical lawsuit pending

against different insurance company, due process

required justice's recusal).

Next, the Court discussed the narrow range of socalled one-person grand jury cases, matters in

which the appearance of a conflict of interest had

required judicial recusal because a judge—after

encountering misconduct in the courtroom, usually

involving perjury or contempt—went on to

criminally charge the perpetrator and then preside

over his or her trial. Id. at 880-81, citing In re

Murchison, 349 U.S. 133, 138, 75 S Ct 623, 99 L

Ed 942 (1955) (where judge sitting as a one-person

secret grand jury charged two witness with

contempt, due process required judge to recuse

himself from the defendants' subsequent bench trial

on those charges, because "it is difficult if not

impossible for a judge to free himself from the

influence of what took place in his 'grand-jury

secret session'"); Mayberry v. Pennsylvania, 400

U.S. 455, 465, 91 S Ct 499, 27 L Ed 2d 532 (1971)

(where judge hearing criminal matter was

repeatedly insulted and demeaned by pro se

defendant during course of trial, due process

required judge to recuse himself from presiding

over defendant's subsequent contempt proceedings,

because defendant's personal attacks against judge

made it unlikely that judge could maintain the

"calm [***39] detachment necessary for fair

adjudication" of defendant's contempt charges).

Finally, the Court discussed the unique

circumstances requiring recusal that had emerged

from Caperton itself. Caperton had begun as a

contract dispute in which a West Virginia circuit

court had entered a $50 million judgment against

the defendant in the action, the A.T. Massey Coal

Co., Inc. (Massey). Before appealing that judgment

Appendix A

18 a

to the West Virginia Supreme Court, Massey's

CEO contributed or made expenditures totaling

approximately $3 million to help the electoral

campaign of an attorney running to unseat one of

the court's then-incumbent justices. The attorney

won his election and, as a newly minted justice

slated to hear Massey's appeal, denied the opposing

party's motion seeking the new justice's recusal—a

motion based on the perception of conflict created

by Massey's sizable financial assistance to the new

justice's judicial campaign. The [*507] new justice

was later part of the three-person West Virginia

Supreme Court majority that reversed the adverse

judgment against Massey.

After granting certiorari, the United States Supreme

Court overturned that decision. The Court held that,

because Massey had appeared [***40] on appeal

before the justice whom Massey's CEO had helped

to elect to West Virginia's high court through

significant

campaign

contributions

and

expenditures—which were made at a time when it

was foreseeable that Massey would seek review

before that tribunal—recusal had been required as a

matter of due process. The rule articulated by the

Court was straightforward:

"[T]here is a serious risk of actual bias—based

on objective and reasonable perceptions—when

a person with a personal stake in a particular

case had a significant and disproportionate

influence in placing the judge on the case by

raising funds or directing the judge's election

campaign when the case was pending or

imminent."

Caperton, 556 U.S. at 884 (emphasis added). Just

as no individual should be allowed to judge their

own case given the inherent risk of bias in doing so,

the Court observed that similar concerns can arise

"when—without the consent of the other parties—a

man chooses the judge in his own cause." Id. at

886. Based on that principle, the Court concluded,

the circumstances in Caperton had created a

serious, objective risk of actual bias that required

the new justice's recusal. Id.

Page 18 of 35

363 Ore. 482, *507; 424 P.3d 688, **705; 2018 Ore. LEXIS 638, ***40

threat to society;

"(C) 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; and

"(D) Whether the defendant should receive a

death sentence."

Those issues are known colloquially as "the four

questions." HN6[ ] The state is obliged to prove

an affirmative case regarding the first three of those

statutory inquiries beyond a reasonable doubt.

There is no burden of proof attached to the fourth

question. ORS 163.150(1)(d).

-+I

The situations discussed in Caperton, in which "the

probability [***41] of actual bias on the part of the

judge or decision maker is too high to be

constitutionally tolerable," 556 [**706] U.S. at

877, constitute the circumstances that currently

define the boundaries within which judicial

recusal—based solely on an appearance of bias—is

required for due process purposes. Here, however,

there is nothing in the facts contained in the record

that can be construed as even remotely analogous to

the circumstances and factors described in

Caperton. There is, for example, no evidence that

Judge James possessed even an incidental or

indirect financial interest in hearing defendant's

case; or that she had served as both grand jury and

adjudicator in the proceedings below; or that a

party with a personal stake in the outcome of

defendant's case [*508] had had a significant and

disproportionate impact on Judge James's election

to the bench.

Appendix A

19 a

The next group of assignments of error that we

address concerns the second question set

out [***43] above. As part of its case addressing

the second question—essentially a question of

defendant's future dangerousness—the state

advised the penalty-phase trial court and defendant

There is, in short, nothing here approaching a that it [*509] had prepared a slideshow

reasonable and objective perception from which presentation and live testimony intended to

one could or should extrapolate a constitutionally demonstrate that the prison's general population—

intolerable risk of judicial bias in this matter. We where defendant would live out his days if not

therefore reject defendant's due process argument sentenced to death—was, in fact, an inherently

environment,

particularly

when

and the general proposition advanced by defendant dangerous

that Judge James was required as a matter of law to compared with incarceration on death row. The

rationale for doing so, the state indicated, was to

have been [***42] recused for cause below.

establish for the jury that the proper societal

III. ASSIGNMENTS OF ERROR REGARDING

context—i.e., prison—in which it must consider the

EVIDENCE OF DEFENDANT'S FUTURE

question of defendant's future dangerousness was

DANGEROUSNESS

one in which the specter of violent criminality was

In Oregon cases involving the death penalty, ORS always present. In that regard, the prosecutor

163.150(1)(b) requires, at the close of the penalty stated:

"When the jurors are asked to determine

phase, that the trial court submit the following four

whether the defendant poses a threat to society,

issues to the jury for its consideration:

obviously we have to explain what society or

"(A) Whether the conduct of the defendant that

societies we might be talking about[;] that

caused the death of the deceased was

could simply only ever include prison for this

committed deliberately and with the reasonable

defendant[.]"

expectation that death of the deceased or

another would result;

The evidence that the state sought to present,

"(B) Whether there is a probability that the however, was not specific to defendant. Moving to

defendant would commit criminal acts of exclude that evidence, defendant argued that the

violence that would constitute a continuing absence of a specific nexus [***44] between it and

Page 19 of 35

363 Ore. 482, *509; 424 P.3d 688, **706; 2018 Ore. LEXIS 638, ***44

his own personal future dangerousness had

rendered the evidence irrelevant and prejudicial. As

part of that motion, defendant did not assert that

incarceration

would

mitigate

his

future

dangerousness.

Defendant's motion was denied, and Oregon State

Penitentiary (OSP) Assistant Superintendent

Brandon Kelly began his testimony by describing

Oregon's prison system, prison visiting areas and

various ways that contraband passes from visitors

to general population inmates, and the day-to-day

experience in the prisons, including the hierarchy of

inmate status and associated acts of violence

[**707] by inmates. The state's slideshow

presentation—accompanied by testimony from

Kelly—included a virtual tour of the OSP; exposed

the jury to a wide array of knives, shanks, and other

homemade weapons confiscated from general

population inmates; chronicled various escapes,

attempted escapes, and inmate-initiated assaults;

and discussed the 12 murders that had occurred

within the Oregon prison system since 1988. The

state also elicited testimony from retired OSP

Captain Jeffrey Forbes, who testified about

everyday items within the prison that could be

turned into weapons, as well as about his [***45]

familiarity with inmates sentenced to [*510] life

imprisonment who had gone on to murder other

inmates while in prison.

The testimony concerning the prison environment

supplemented a plethora of other evidence

presented by the state specific to defendant and his

future dangerousness. That evidence included

accounts of defendant's previous crimes, testimony

from individuals whom he had brutalized while

either still a minor or during his previous terms of

incarceration, as well as statements taken from

defendant's own journal, in which he described his

criminal behavior as "part of my power and

control."6

6 Specifically, defendant wrote:

"I see my criminality as part of my power and control,

regulation patterns. I use calculating, compulsive thinking

Appendix A

20 a

Defendant has asserted seven assignments of error

that address some aspect of the penaltyphase [***46] trial court's failure to grant his

motion to exclude evidence relating to prison

society. Of those seven assignments of error, we

address the following two:

"The sentencing-only remand trial court erred

in allowing the State to admit irrelevant

evidence, specifically, testimony, photos and a

PowerPoint presentation regarding dangerous

contraband, escapes, assaults, murders and

other non-statutory generalized aggravation

evidence not specific to [defendant] alleged to

have occurred within the ODOC[.]"

(Assignment of Error No. 26.)

"The sentencing-only remand trial court erred

in failing to undertake a probative value versus

prejudice analysis of the State's proffered nonstatutory generalized aggravation evidence not

specific to [defendant] prior to it being

admitted[.]" (Assignment of Error No. 27.)

Defendant sums up his position regarding those

assignments of error by broadly contending that the

"fact that the environment the State itself

creates, maintains and in which it places a

defendant, is volatile is not [*511] indicative

of that defendant's propensity to commit future

acts of violence. Absent some connection with

[defendant] personally and individually, the

criminal behavior of others [***47] housed

within the ODOC should not be able to be used

to negate the mitigating value of the past 27plus years of non-violence on the part of

[defendant] while he has been housed in

various locations within ODOC custody."

Defendant thus contends that the evidence

towards criminal, hurtful behavior. I favor my selfgratification.

"My failure to resist these impulses is evidenced by my

extensive criminal history. I use my criminality as a rebellious

expression of autonomy and to [sic] damage and destruction

that I cause is symbolic in nature. It is my way of saying fuck

the world. I am someone. And I will do whatever I want to

whenever I want to do it."

Page 20 of 35

363 Ore. 482, *511; 424 P.3d 688, **707; 2018 Ore. LEXIS 638, ***47

portraying the prison environment as dangerous

was inadmissible—either as irrelevant or as

unfairly prejudicial.

As an initial matter, in accordance with State v.

Sparks, 336 Ore. 298, 83 P3d 304 (2004), we

conclude that the evidence was relevant. HN7[ ]

Under OEC 401, "relevant evidence" means

"evidence having any tendency to make the

existence of any fact that is of consequence to

the determination of the action more probable

or less probable than it would be without the

evidence."

Appendix A

21 a

to a controversial point would invite the

exclusion of this helpful evidence, or at least

the raising of endless questions over its

admission.'"

Sparks establishes the relevancy of the future

dangerousness evidence that defendant now

challenges on review. In Sparks—a case involving

the aggravated murder of a 12-year-old girl—

defense counsel indicated at the opening of the

penalty-phase proceeding that he intended to

dispute the notion of the defendant's future

dangerousness by showing that the defendant

would not pose a danger once incarcerated within a

prison population of adult males. Later, over

defendant's relevance objections, as part of the

state's evidence addressing the question of future

dangerousness, the prosecutor highlighted the

opportunities for violence within prison society by

presenting photographic displays of knives, drug

paraphernalia, and other contraband confiscated

I+

"'The fact to which the evidence is directed

need not be in dispute. While situations will

arise which call for the exclusion of evidence

offered to prove a point conceded by the

opponent, the ruling should be made on the

basis of * * * considerations [set forth in] Rule

403, rather than under any general requirement

that evidence is admissible only if directed to

matters in dispute. Evidence which is

essentially background in nature can scarcely

be said to involve disputed matter, yet it is

universally offered and admitted as an aid to

understanding. Charts, photographs, views of

[*512] real estate, murder weapons and many

other items of evidence fall in this category. A

rule limiting admissibility to evidence directed

I

[**708] And under Oregon law, whether a fact is

disputed or not is of no moment for purposes of

relevancy when the evidence that is intended to

establish that fact will aid decisionmakers in their

determinations. In that regard, the legislative

commentary to OEC 401 [***48] is instructive:

Laird C. Kirkpatrick, Oregon Evidence § 401.02,

Art IV 153 (6th ed 2013) (quoting 1981 Conference

Committee to OEC 401) (ellipses and brackets in

original; emphasis added). See also State v.

Williams, 357 Ore. 1, 346 P3d 455 (2015) (in child

sexual abuse case, defendant's possession of

children's underwear was relevant to whether he

had touched five-year-old victim for a sexual

purpose despite lack of argument from defendant

that any contact with victim had lacked such

purpose). Indeed, even when criminal defendants

offer to stipulate to facts slated to be established by

the evidence offered against them, the proffered

stipulation does not, by itself, scrub the evidence in

question of its relevancy or admissibility. See, e.g.,

Sparks, 336 Ore. at 307-08 (citing OEC 401

legislative commentary to hold that post-mortem

photographs of murder victim were relevant and

admissible in capital murder prosecution despite

criminal defendant's pretrial offer to stipulate to

facts that the photographs tended to establish as

true; availability of proffered stipulation [***49]

provided alternate form of proof, but did not render

photographs irrelevant).

In terms of evidentiary admissibility, that standard

represents a "low bar," State v. Davis, 351 Ore. 35,

48, 261 P.3d 1197, 1205 (2011), meaning that

evidence is relevant so long as it increases or

decreases—even slightly—the probability that a

fact will be consequential to the determination of an

action. State v. Barone, 329 Ore. 210, 238, 986 P2d

5 (1999), cert den, 528 U.S. 1086, 120 S. Ct. 813,

145 L. Ed. 2d 685 (2000).

Page 21 of 35

363 Ore. 482, *512; 424 P.3d 688, **708; 2018 Ore. LEXIS 638, ***49

from inmates at the Oregon State Penitentiary, as

well as testimony from a prison official recounting

various violent incidents perpetrated within the

prison system, both by gangs and individual

inmates. Id. at 320.

[*513] On review, the defendant asserted that the

trial court had erred because the evidence in

question had allowed the state to prove his future

dangerousness through [***50] evidence that was

probative only of the bad acts of others. This court

took a contrary view, stating:

"In our view, defendant's argument is incorrect

because it assumes that [the prison official's]

testimony and the challenged photographs

solely pertained to the potential dangerousness

of other prison inmates. To the contrary, that

evidence described part of the violent

characteristics of the institution in which

defendant would be confined in the immediate

future. Evidence of that violent institutional

environment can assist jurors in understanding

whether defendant would face a significant risk

in prison of involvement in violent acts against

others and, perhaps, the use of weapons that the

environment affords. Thus, the state's evidence,

properly understood, does pertain to defendant,

and helps the jury understand, at least to some

degree, the probability that defendant will

[**709] commit criminal acts of violence in

the future."

Id. at 324. This court reiterated that the "society"

under consideration in the second question includes

"prison society." Id. at 323 (citing State v. Douglas,

310 Ore. 438, 450, 800 P2d 288 (1990)). That

question, the court explained, required the jury to

decide "whether defendant would be dangerous in

prison society," id. at 323, and "jurors

ordinarily [***51] will not have the personal

experience or expertise to know what opportunities

for violence exist in the prison setting," id. at 324.

Appendix A

22 a

evidence regarding the violent characteristics of

prison society directly pertains to defendants who

potentially face the death penalty, insofar as that

evidence demonstrates characteristics of the

institution in which they will presumably live out

their days. Second, that evidence is relevant to a

defendant's future "threat to society," because it

tends to show that a defendant's risk of violent

interactions with others is significant, due to the

violent nature of the prison environment itself.

Defendant, however, contends that Sparks does not

control. Sparks is distinguishable, defendant argues,

because [*514] of its different evidentiary setting:

unlike the circumstances in his case, the defendant

in Sparks disputed the issue of his future

dangerousness by attempting to distinguish

between prison and outside societies. According to

defendant, the defendant in Sparks had essentially

made the state's prison-related evidence regarding

future [***52]

dangerousness

relevant

by

affirmatively arguing that the circumstances of his

incarceration would effectively mitigate the specter

of future dangerousness.

However, the state in this case articulated a theory

regarding the relevance of the evidence to its proof

of prison society, as approved in Sparks, and, in

assessing relevance, it does not matter that

defendant had not contested the fact that the prison

environment offers opportunities for inmates in the

general prison population to commit acts of

violence against others. Following Sparks,

defendant's argument concerning irrelevance of the

evidence is not well-taken.

+I

-+I

Defendant also argues that, even if relevant, the

evidence of violence in prison society was

outweighed by its prejudicial impact. HN9[ ]

Under OEC 403, a court may exclude relevant

evidence if its probative value is substantially

outweighed by the danger of unfair prejudice. That

rule provides:

"Although relevant, evidence may be excluded

In a nutshell, the holding from Sparks establishes

if its probative value is substantially

two tenets that affect the issue of future

outweighed by the danger of unfair prejudice,

dangerousness in capital cases. First, HN8[ ]

Page 22 of 35

363 Ore. 482, *514; 424 P.3d 688, **709; 2018 Ore. LEXIS 638, ***52

confusion of the issues, or misleading the jury,

or by considerations of undue delay or needless

presentation of cumulative evidence."

As used in OEC 403, the term "unfair [***53] As

used in OEC 403, the term "unfair prejudice" does

not refer to evidence that is simply harmful to the

opponent's case; indeed, all evidence presented at

trial is intended to prejudice one side or the other,

i.e., to increase the likelihood that the adverse party

will not prevail. State v. Lyons, 324 Ore. 256, 280,

924 P2d 802 (1996). Instead, "unfair prejudice"

refers to an undue evidentiary tendency to suggest a

decision on an improper basis, commonly, although

not always, an emotional one. Id. Thus, successful

motions to exclude evidence under OEC 403 will

encompass situations in which the trier of fact will

be improperly affected by factors unrelated to the

fact of consequence for which a particular piece of

evidence has been offered. In such cases, the party

seeking exclusion of that evidence bears the burden

of persuasion. State v. O'Key, 321 Ore. 285, 320,

899 P2d 663 (1995). prejudice" does not refer to

evidence that is simply harmful to the opponent's

case; indeed, all evidence presented at trial is

intended to prejudice one side or the other, i.e., to

increase the likelihood that the adverse party will

not prevail. State v. Lyons, 324 Ore. 256, 280, 924

P2d 802 (1996). Instead, "unfair prejudice" refers

to an undue evidentiary tendency to suggest a

decision on an improper basis, commonly, although

not always, an emotional one. Id. Thus, successful

motions to exclude evidence under OEC 403 will

encompass situations in which the trier of fact will

be improperly affected by factors unrelated to the

fact of consequence for which a [*515] particular

piece of evidence has been offered. In such cases,

the party seeking exclusion of that evidence bears

the burden of persuasion. State v. O'Key, 321 Ore.

285, 320, 899 P2d 663 (1995). We review a trial

court's decision regarding OEC 403 for abuse of

discretion. State v. Moore, 324 Ore. 396, 407, 927

P2d 1073 (1996).

According to defendant, the state's prisonenvironment evidence was unfairly prejudicial

Appendix A

23 a

because jurors may have failed to make an

individualized determination of defendant's future

dangerousness that was based on his own prison

record, opting instead to infer from the state's

evidence that defendant would pose a danger

simply because he was part of the so-called

"prisoner class." [***54] Defendant's theory that

the jury could have considered that evidence and

then drawn inferences unrelated to the state's actual

evidentiary aims is, without more, insufficient to

conclude that the trial court abused its discretion

[**710] and that exclusion of that evidence as

unfairly prejudicial was required as a matter of law.

The difficulty for defendant lies in the close

connection recognized in Sparks that links evidence

about the nature of prison society to the issue of a

defendant's future dangerousness raised by the

second question that the jury must consider. Cf.

State v. Rogers, 352 Ore. 510, 546-47, 288 P3d 544

(2012) (absent close link between evidence of

consensual homosexual relationship occurring

during defendant's youth and issue of defendant's

future dangerousness, trial court erred in allowing

evidence of that relationship to prove future

dangerousness in capital case where murder victims

had all been women; without requisite nexus, slight

relevance of evidence under OEC 401 was

outweighed by danger of unfair prejudice under

OEC 403); State v. Flett, 234 Ore. 124, 128, 380

P2d 634 (1963) (testimony that wife accused of

fatally stabbing husband had been seen at motel

several months earlier with unidentified man was

unduly prejudicial in the absence of "substantial

connecting link" between the two [***55]

occurrences).

Sparks establishes that HN10[ ] evidence of a

prison's "violent institutional environment can

assist jurors in understanding whether [a] defendant

would face a significant risk in prison of

involvement in violent acts." Sparks, 336 Ore. at

324 (brackets added). Defendant's blanket attempt

to portray [*516] all such evidence, not specific to

himself, as unfairly prejudicial for purposes of

determining future dangerousness is simply too

broad given the strength of the evidentiary link

Page 23 of 35

363 Ore. 482, *516; 424 P.3d 688, **710; 2018 Ore. LEXIS 638, ***55

affirmed by Sparks. Although we reject defendant's

argument as framed, to be clear, our conclusion

does not preclude a defendant from arguing, and a

court from determining, that particular evidence

related to violence in prison society—whether or

not of the same types as introduced in this case—

must be excluded under OEC 403 as cumulative or

as unfairly prejudicial.7 In conclusion, the trial

court did not abuse its discretion by overruling

defendant's objection under OEC 403 and admitting

the evidence of violence in prison society.

IV. ASSIGNMENTS OF ERROR REGARDING

DENIAL OF DEFENDANT'S FOURTHQUESTION LIMITING INSTRUCTION

For capital defendants whose crimes occurred

before 1995, fourth-question determinations are

governed by considerations that [***56] predate

the present statutory scheme set out at ORS

163.150. As a result, we begin this section with a

brief primer on the evolution of the fourth question

in death penalty cases, to better frame the

assignments of error that defendant now raises in

the context of the trial court's refusal to give the

jury an instruction limiting its consideration of

aggravating evidence.

A. Legal Context

The central inquiry encompassed by the fourth jury

question as articulated in ORS 163.150(1)(b)(D)—

whether a defendant should be sentenced to

death—has been part of Oregon's death-penalty

sentencing statutes since 1989, although it obtained

its present text following amendments made in

1991.8 In construing the 1989 version of the statute,

7 Although

we focus on admissibility of evidence of violence in

prison, we do not mean to imply that other evidence pertaining to a

defendant's future dangerousness, although not specific to the

defendant, is inadmissible. For example, in this case, defendant was

able to establish through cross-examination of Forbes, and without

objection, that inmates at OSP sentenced to lengthy sentences, such

as life imprisonment, comprise a generally well-behaved inmate

population.

8 ORS 163.150(1)(b)(D) (1989) provided:

Appendix A

24 a

[*517] a majority of this court concluded that the

fourth question served as a mechanism that allowed

juries "to give full effect to any mitigating

circumstances" that weighed against a death

sentence. State v. Guzek, 322 Ore. 245, 263, 906

P2d 272 [**711] (1995) (Guzek II). We went on to

hold that such evidence was relevant—and

therefore admissible—only with regard to fourthquestion

determinations

under

ORS

163.150(1)(b)(D) (1989). Id.

In 1995, the legislature amended ORS

163.150(1)(a) to provide that, in addition to

evidence of mitigating circumstances, relevant

aggravating evidence could also be presented to a

jury as part of the fourth-question determination.

See ORS 163.150(1)(a) (1995) (providing that, in

sentencing proceedings for aggravated murder,

"evidence may be presented as to any matter that

the court deems relevant to sentence including, but

not limited to, victim impact-evidence relating to

the personal characteristics of the victim or the

impact of the crime on the victim's family and any

aggravating and mitigating evidence relevant to the

[fourth question issue in ORS 163.150(1)(b)(D)]"

(emphasis added)). Two years later, the legislature

amended the statutory jury instructions that

accompanied the fourth question to mirror those

1995 amendments. See ORS 163.150(1)(c)(B)

(1997) (directing juries to answer the fourth

question in the negative "if, after considering any

aggravating evidence and any mitigating evidence

concerning any aspect of the defendant's character

or background . . . one or more of the jurors believe

that the defendant should not receive a [***58]

"If constitutionally required, considering the extent to which

the defendant's character and background, and the

circumstances of the offense may reduce [***57] the

defendant's moral culpability or blameworthiness for the crime,

whether a sentence of death be imposed."

The 1991 Legislative Assembly amended the statute to its current

form in response to this court's decision in State v. Wagner, 309 Ore.

5, 16, 786 P2d 93, cert den, 498 U.S. 879, 111 S Ct 212, 112 L Ed

2d 171 (1990), that the trial court has authority to submit to the

sentencing jury a fourth question allowing the jury to spare the life of

the defendant.

Page 24 of 35

363 Ore. 482, *517; 424 P.3d 688, **711; 2018 Ore. LEXIS 638, ***57

death sentence" (emphasis added)).

In 2004, however, this court was called upon to

explore the impact of the fourth-question

amendments described above on capital defendants

whose crimes predated those changes. In State v.

Guzek, 336 Ore. 424, 433-38, 86 P3d 1106 (2004)

(Guzek III), this court held, in part, [*518] that

retroactive application of those amendments as they

pertained to aggravating evidence in capital

sentencing proceedings violated the ex post facto

provisions of Article I, Section 21, of the Oregon

Constitution.9 Since then, for individuals—like

defendant—whose capital crimes occurred before

the "any aggravating evidence" amendments were

added to ORS 163.150, trial courts have been

precluded as a matter of law from applying those

particular 1995 and 1997 changes to fourth

question determinations. With that legal context in

mind, we turn now to the facts and to defendant's

assignments or error regarding the penalty-phase

trial court's fourth question-related rulings.

B. Defendant's Assignments of Error

Early in the pretrial part of his sentencing

proceeding, defendant submitted Motion No. 17 to

the penalty-phase trial court. He sought, in part, to

preemptively exclude, on ex post facto grounds,

any fourth-question aggravating evidence otherwise

admissible

under

the

1995

and

1997

amendments. [***59]

In January 2014, Judge James granted that request,

noting in the process that her

"understanding is that the State does not intend

to offer any aggravating evidence with respect

to issue 4, that the state is restrained in its

presentation of aggravating evidence as to the

first three questions, and the Court will not

allow aggravating evidence with respect to the

fourth question to be considered and the jury

would be so instructed."

Several days later, Judge James clarified that the

9 This court's holding in Guzek III regarding the fourth question is

discussed in greater detail below.

Appendix A

25 a

best way to ensure that the jury understood "what

evidence is relevant to what question" would be for

the parties and the court to collectively find an

appropriate jury instruction:

"I think you all appreciate the need to make

sure that the aggravating factors are not factors

that the jury is asked to consider on the fourth

question. But certainly evidence of aggravating

factors is permissible in the other three

questions. And so the way to address that so

that a jury understands what evidence is

relevant to what question is [*519] one that

we will work through and find an instruction

that works."

Apparently, the parties did not provide a jointly

requested instruction to the court. In May 2014,

defendant requested [***60] that the court give the

following limiting instruction to the jury:

[**712] "There has been argument and

evidence submitted in this case regarding the

violent and criminal conduct of individuals

(incarcerated and otherwise) other than that of

[defendant]. You are hereby instructed not to

consider evidence or argument concerning the

conduct of anyone other than [defendant] in

your determination of the 4th question, whether

the defendant should receive a death sentence."

The court, however, refused to give defendant's

proposed limiting instruction. Instead, the court

gave the following instructions to the jury

regarding the fourth question:

"The fourth question asked by the law is, Shall

a death sentence be imposed? The burden of

proof beyond a reasonable doubt does not

apply to this fourth question. Regarding this

question neither side bears any burden of proof.

The question calls for a discretionary

determination to be made by each of you based

on the evidence.

"If all 12 jurors do not agree that the answer to

this question is yes, then you must answer this

question no. Even though you have answered

Page 25 of 35

Appendix A

26 a

363 Ore. 482, *519; 424 P.3d 688, **712; 2018 Ore. LEXIS 638, ***60

yes to the first three questions, you're not

required to answer yes to the fourth question.

Any [***61] one of you has the power and

discretion to choose life imprisonment as the

appropriate sentence.

"You must answer this question no if after

considering

any

mitigating

evidence

concerning any aspect of the defendant's

character or background or any circumstances

of the offense or any victim impact evidence

relating to the personal characteristics of the

victim or the impact of the crime on the

victim's family, one or more of you believe that

the defendant should not receive a death

sentence."

The trial judge explained her reasoning for

rejecting defendant's proposed jury instruction from

the bench:

"I think we've captured the legal standard in

Oregon adequately. And after reading the

whole instruction I'm [*520] also comfortable

that it does direct the jury to consider

mitigation evidence in a pretty explicit way

without equivocation. And I don't want to

introduce

any

equivocation

into

the

instruction."

Defendant asserts six assignments of error on

review, all of which address some aspect of the

penalty-phase trial court's denial of defendant's

fourth-question limiting instruction. Of those six

assignments of error, we address the following

three:

"Judge James erred in refusing to provide the

jurors [***62] with [defendant's] requested

limiting instruction[.]" (Assignment of Error

No. 33.)

"Judge James erred in refusing to adhere to her

pretrial assertions, rulings, and orders that she

would specifically preclude the jurors'

consideration of non-statutory generalized

aggravation evidence not specific to

[defendant] in their determination of the 4th

question thereby contravening [defendant's]

rights to notice and due

(Assignment of Error No. 35.)

process[.]"

"Judge James erred in failing to specifically

preclude the jurors' consideration of nonstatutory generalized aggravation evidence not

specific to [defendant] in their determination of

the 4th question in contravention of Article I,

section 21, of the Oregon Constitution and this

Court's holding in Guzek III[.]" (Assignment of

Error No. 36.)

The threshold premise underlying those

assignments of error is that, under the facts set out

above, Judge James and the prosecution "reneged

on their pretrial representations and assurances"

about giving a limiting instruction concerning the

fourth question. As a result, defendant argues,

Judge James's failure to fulfill her promises in that

regard constituted reversible error, insomuch as that

failure (1) deprived defendant of notice and due

process, [***63] which in turn interfered with

defendant's constitutional rights to adequate and

effective assistance of counsel, and (2) violated this

court's ex post facto prohibition against applying

aggravation evidence to the fourth question in

homicide cases arising before 1995. For the latter

point, defendant relies on Guzek III, 336 Ore. at

430-39 (holding that retroactive application of

amendments to death penalty statute allowing

admission of "any aggravating evidence" in penalty

phase [*521] of murder trial violated ex post facto

prohibitions where the defendant's offenses

predated 1995 and 1997 amendments; prosecution

was therefore limited to presenting aggravating

evidence relevant [**713] to first three questions

specified in statute). According to defendant, the

cumulative effect of those errors now requires

remand for a new trial.

C. Analysis

We turn first to the proposition that Judge James

provided assurances or promises to defendant

through her January 2014 statements concerning

aggravating evidence and the fourth question.

Generally, a trial court has broad discretion in

Page 26 of 35

363 Ore. 482, *521; 424 P.3d 688, **713; 2018 Ore. LEXIS 638, ***63

determining whether to reconsider its earlier

rulings, State v. Guzek, 358 Ore. 251, 268, 363 P3d

480 (2015), and may revisit a pretrial ruling when

events at trial unfold that call for adjustments to

that ruling. [***64] However, this court confronted

a similar question of promissory intent in State v.

Orians, 335 Ore. 257, 263, 66 P3d 468 (2003), and

observed that there are

"times when a judge gives his or her word so

directly that, absent unusual and unexpected

subsequent developments, the judge must be

said to have exercised the judge's power at the

time that the judge makes the statement, even

before the judge signs a document

memorializing that promise."

In light of that statement in Orians, the inquiry now

before us is this: Did Judge James so directly

promise to provide a limiting instruction precluding

juror consideration of "non-statutory generalized

aggravation evidence" regarding the fourth question

that it constituted an unalterable exercise of her

judicial power? For the reasons that follow, we

conclude that the answer to that question is "no."

Appendix A

27 a

compromise with the victim:

"'So, the good news * * * is that if you are able

to pay off [the victim] in toto, then I will go

ahead and dismiss this case. I'll set it over for

90 days, and that way the victim can be paid

and you can be assured of a dismissal.'"

335 Ore. at 260 (brackets and emphasis in original).

The defendant subsequently executed his part of the

compromise, paying the victim $3,000 and thereby

changing his position in reliance on the court's

statement. Id. But the trial court refused to dismiss

the matter, and this court concluded that the trial

court had abused its discretion and ordered the case

against the defendant dismissed. Id. at 265. In

reaching that conclusion, we were careful to note

that "the judge's statement could not have been

more direct." Id. at 263. Unambiguous and

unequivocal, the statement in Orians represented,

we opined, a promise that a "judge in the ordinary

course must be expected to honor." Id.

In contrast here, the statements that defendant

proffers as examples of an equivalent judicial

In Orians—a mandamus matter involving the civil promise in this case cannot be viewed as similarly

compromise provisions of ORS 135.703 to unambiguous and unequivocal. The statement in

135.70910—we held [*522] that a judicial promise Orians was marked by a promissory-like

had been so directly given as to be incapable of pronouncement that was susceptible to only one

rescission, despite the fact that it had not been meaning: "you can be assured of a dismissal." By

entered on the case register. There, the trial court contrast, the statements at issue here contain no

judge had made the following statement in open such promissory inclinations and are open to

court regarding the proposed dismissal of theft different interpretations. Specifically, Judge

charges against the defendant if the defendant James's observation that she would not "allow

undertook [***65] and fully executed a civil aggravating evidence with respect to the fourth

question to be considered and the jury would be so

instructed," can be construed several ways. It might

be, as defendant appears to argue, that Judge James

10 ORS 135.703 to 135.709 authorize dismissal of criminal

prosecutions pursuant to a civil compromise. Specifically, ORS intended to cabin the jurors' individual thought

135.705(1)(a) provides:

processes vis-à-vis the fourth question by

"If the person injured acknowledges in writing, at any time instructing them on what they could not think about

before trial on an accusatory instrument for the crime, that the in the course of answering that question.

person has received satisfaction for the injury, the court may, in Alternatively, Judge James may have meant to

its discretion, * * * enter a judgment dismissing the accusatory

[**714] convey that she would not allow

instrument." [***66]

aggravating evidence to be introduced at trial for

Discharge by compromise is a bar to another prosecution for the purposes of the fourth [*523] question and

same crime. ORS 135.707.

Page 27 of 35

363 Ore. 482, *523; 424 P.3d 688, **714; 2018 Ore. LEXIS 638, ***66

intended to find an appropriate jury instruction

consistent with that goal.

Of those two views, the latter appears the most

likely to [***67] be correct, given that Judge

James's statements arose against the backdrop of a

pretrial ex post facto motion to exclude evidence

tendered by defendant to avoid exactly such a

scenario. Our conclusion finds further support in

Judge James's subsequent comments—set out

above—regarding the importance of ensuring that

the jury understood "what evidence is relevant to

what question." Not only do those comments

demonstrate that jury instructions regarding the

fourth question remained a work in progress at the

time ("we will work through and find an instruction

that works"), they also show that the penalty-phase

trial court was focused less on how the jury would

process the relevant evidence presented to it and

more on what relevant evidence the jury could be

properly presented with (noting the "need to make

sure that the aggravating factors are not factors that

the jury is asked to consider on the fourth question"

(emphasis added)). In light of Orians, and the fact

that (1) alternative meanings can be attributed to

the statements at issue here and (2) those statements

lack any overtly promissory impetus, there is

insufficient evidence on this record from which we

can conclude that an unequivocal [***68] promise

was made below to provide the jury with

defendant's requested limiting instruction.

Defendant further contends that, in any event,

promise or not, the penalty-phase trial court's

failure to specifically instruct jurors not to consider

"non-statutory, generalized aggravation evidence"

that was not specific to defendant violated the ex

post facto holding in Guzek III. A proper

understanding of this court's decision in Guzek III

is a prerequisite to ascertaining whether an ex post

facto violation did, indeed, take place below.

In Guzek III, this court vacated the defendant's

death sentence and remanded for new sentencing

proceedings based on the trial court's failure to

instruct the jury on a true-life sentencing option.

Appendix A

28 a

336 Ore. at 430. Having done so, however, we went

on to explore various issues preserved by the

defendant that would likely arise on remand, among

[*524] them the question of whether the "any

aggravating evidence" provision added as a fourthquestion evidentiary consideration in 1995 should

be applied at the defendant's new sentencing

proceedings, despite the fact that he had committed

his crimes in 1987.

In taking up that issue, this court noted, in part, that

the 1995 amendment had [***69] effectively

removed two evidentiary limitations that had

previously favored capital sentencing defendants,

namely, that all evidence supporting a sentence of

death must (1) be limited in its relevance to either

the first three statutory questions or as rebuttal to

mitigation evidence, and (2) when applied to the

first three statutory questions, implicate the highest

possible burden of proof. Id. at 438. Because

removal of those limitations constituted a "onesided" alteration that had made imposition of a

death sentence more likely, we held that the

retroactive application of such changes in a capital

sentencing proceeding would violate the ex post

facto provisions of the Oregon Constitution's

Article I, Section 21 (providing, in relevant part,

that "[n]o ex-post facto law * * * shall ever be

passed"). Id. Specifically, we concluded that, in

defendant's remanded penalty-phase proceeding,

the trial court was precluded from retroactively

applying the "any aggravating evidence" provisions

of the 1995 and 1997 amendments to the fourthquestion determination. Id. at 438.

In doing so, however, this court reiterated the

relevancy principles that had previously applied to

evidence supporting a death sentence:

"Any determination of the relevance of the

state's [***70] aggravating evidence against

[the] defendant therefore must be in relation to

the first three statutory questions set out in

ORS 163.150(1)(b)(A) to (C) or in relation to

rebuttal of any particular mitigating evidence

offered by defendant."

Page 28 of 35

363 Ore. 482, *524; 424 P.3d 688, **714; 2018 Ore. LEXIS 638, ***70

Id. at 438-39 (brackets added). This court also

clarified the scope of the trial court's duty on

remand by first noting that the evidence cited by

the defendant as having been improperly applied to

the fourth-question

[**715]

below might

nevertheless be admissible as to the second

question as evidence of future dangerousness. As a

result, we continued, the trial court's duty on

remand was to

[*525] "determine if such evidence is relevant

and, therefore, generally admissible under ORS

163.150(1)(b)(B) (or under the other statutory

questions on which the state bears the burden

of proof), or whether the evidence qualifies

solely as 'any aggravating evidence' not

relevant to the first three questions and not

rebutting any particular mitigating evidence

offered by defendant."

Id. at 439 n 12.

In short, HN11[ ] for defendants whose capital

crimes predated the statutory inclusion of

aggravating evidence as a factor in fourth question

determinations, our ex post facto holding in Guzek

III reimposed several constraints on the penaltyphase process. First, [***71] it prohibited trial

courts from admitting into evidence aggravating

facts relevant solely to the fourth question.11

Second, it prohibited trial courts from instructing

jurors to consider such evidence in reaching the

fourth-question determination.

Neither of those fact scenarios, however, is present

in this case. The penalty-phase trial court did not

permit aggravating facts relevant only to the fourth

question to be presented to the jury, nor did the trial

court instruct the jury to consider such facts as part

of its fourth-question determination. Indeed, by

expressly granting defendant's motion to exclude

11 As we explain in footnote 12, the court in Guzek III also held that,

regardless of the defendant's ex post facto arguments, victim impact

evidence was admissible under the fourth question. 336 Ore. at 44048.

Appendix A

29 a

any fourth-question aggravating evidence otherwise

admissible under the 1995 and 1997 amendments,

the trial court took pains to ensure the opposite

outcome below. As a result, the argument that

failure to give defendant's requested limiting

instruction regarding the fourth question constituted

an ex post facto violation under the holding in

Guzek III is simply incorrect.

That said, HN12[ ] where evidence is admissible

for one purpose and not another, it is generally

error—albeit not necessarily prejudicial error—for

a trial court to refuse a limiting instruction that

would [***72] minimize the jury's use of that

evidence for the inadmissible purpose. State v.

Reyes, 209 Ore. 595, 630, 308 P2d 182 (1957).

Among the exceptions that trump that general rule,

however, are when a proffered [*526] instruction

(1) is not a correct statement of the law or (2) is a

correct statement of the law, but is nevertheless

covered by the trial court's other instructions. State

v. Barnes, 329 Ore. 327, 334, 986 P2d 1160 (1999);

see also State v. Montez, 324 Ore. 343, 362, 927

P2d 64 (1996) (refusal to give requested jury

instruction not erroneous if instruction given by

court "adequately addresses the subject of the

requested instruction").

Here, the jury instruction ultimately given by the

penalty-phase trial court directed that mitigating

evidence and victim-impact evidence12—as

opposed to aggravating evidence—were the jury's

sole concerns in rendering its fourth question

determination in this case. HN13[ ] As a matter of

law, we presume that the jurors followed those

instructions absent an overwhelming probability

12 Oregon voters adopted the crime victim's rights provisions set out

at Article I, section 42, of the Oregon Constitution as a legislatively

referred constitutional amendment in 1999, long after the

commission of the crime at issue in this case. Among other things,

the amendment provided that crime victims have "[t]he right * * * to

be heard at * * * the sentencing * * * disposition." Ore. Const, Art I,

§ 42(1)(a). In Guzek III, 336 Ore. at 440-48, this court held that the

application of that right in capital cases that predated the amendment

did not offend the ex post facto prohibitions of either the state or

federal constitutions. We decline to revisit that holding in Guzek III.

Page 29 of 35

363 Ore. 482, *526; 424 P.3d 688, **715; 2018 Ore. LEXIS 638, ***72

that they were unable to do so. State v. Terry, 333

Ore. 163, 177, 37 P3d 157 (2001). Assuming

arguendo that defendant's requested limiting

instruction would have been correct as a matter of

law if it had been given, we nevertheless hold that

the fourth-question instruction ultimately provided

in this case was adequate to the task of directing the

jury in its proper consideration of the

evidence. [***73] The penalty-phase trial court did

not err in declining to give defendant's requested

limiting instruction.

[**716] V. ASSIGNMENTS OF ERROR

REGARDING CHANGES TO OREGON'S

CAPITAL SENTENCING STRUCTURE AFTER

PENRY v. LYNAUGH

Appendix A

30 a

describe those responses before setting out the facts

and defendant's assignments of error.

In an effort to bring Oregon's statutes into line with

the Supreme Court's decision in Penry, shortly after

that case was decided, the Oregon Legislative

Assembly added a fourth inquiry to the state's death

penalty provisions in July 1989. That text provided:

"If constitutionally required, considering the

extent to which the defendant's character and

background and the circumstances of the

offense may reduce the defendant's moral

culpability or blameworthiness for the crime,

whether a sentence of death be imposed."

ORS 163.150(1)(b)(D) (1989). At the same time,

the legislature also added the following to the death

penalty statutes:

A. Background and Assignments of Error

"If a reviewing court finds prejudicial error in

the sentencing proceeding only, the court may

In June 1989, approximately two years after

set aside the sentence of death and remand the

defendant murdered Anne Gray, the United States

case to the trial court. No error in the

Supreme Court decided Penry v. Lynaugh, 492 U.S.

sentencing proceeding shall result in reversal of

302, 109 S Ct 2934, 106 L Ed 2d 256 (1989). In

the defendant's conviction for aggravated

Penry, a Texas statutory capital sentencing

murder."

procedure required a trial court to submit three

[*527] questions to the jury. 492 U.S. at 310. The ORS 163.150(5)(a) (1989).

Supreme Court held in part that, in the absence of

an instruction informing the jury that it could One month later, in August 1989, this court took up

consider and give effect to mitigating evidence by State v. Wagner, 309 Ore. 5, 786 P2d 93 (1990),

declining to impose the death penalty, the jury had cert den, [*528] 498 U.S. 879, 111 S. Ct. 212, 112

not been provided with a vehicle for expressing a L. Ed. 2d 171 (1990) (Wagner II). In [***75] that

reasoned and moral response to such evidence in case, which had been remanded by the United

reaching its capital sentencing decision. Id. at 328. States Supreme Court in light of its decision in

The lack of such an instruction, the Court opined, Penry, see Wagner v. Oregon, 492 U.S. 914, 109 S

required remand for resentencing. Id.

Ct 3235, 106 L Ed 2d 583 (1989) (so noting), this

court was called upon to consider, among other

At the time, Oregon's death penalty instructions had

things, the constitutionality of Oregon's pre-Penry

been based on the same Texas statutory scheme

1987 capital-sentencing statute. At that time, we

applied in Penry. Compare Penry, 492 U.S. at 310

adhered to our previous holding in Wagner I,

(quoting Tex Code Crim Proc Ann art 37.071(b) concluding that ORS 163.150 was not facially

(Vernon 1981 and Supp 1989)), and ORS unconstitutional. 309 Ore. at 16. We also held that,

163.150(1) (1989). The final group of assignments in light of the changes wrought by Penry

of error that we discuss concerns the concerning the question of mitigation in death

legislative [***74] and judicial responses to the penalty cases, Oregon trial courts possessed

Penry decision, which included changes to

Oregon's capital sentencing statutes. We briefly

"the statutory authority under ORS 163.150(1),

Page 30 of 35

363 Ore. 482, *528; 424 P.3d 688, **716; 2018 Ore. LEXIS 638, ***75

Id.

I

~

In remanding for resentencing, this court also

referred to the newly amended provisions of ORS

163.150. Id. at 17. Ultimately, the court concluded

that, HN14[ ] in cases where a capital sentencing

jury had not been instructed "to consider any

mitigating aspect of defendant's life * * * not

necessarily related causally to the offense" in

determining whether the defendant should be

sentenced to death, the appropriate remedy was

remand

for

new

penalty-phase [***76]

proceedings. Id. at 20. In reaching that conclusion,

the court noted a lack of grammatical clarity in the

fourth-question inquiry created [**717] by the

legislature, and it suggested the following as an

alternative:

"'Should defendant receive a death sentence?

You should answer this question 'no' if you find

that there is any aspect of defendant's character

or background, or any circumstances of the

offense, that you believe would justify a

sentence less than death.'"

Id. at 19.

With that history as background, we turn now to the

facts underlying defendant's assignments of error

regarding the capital-sentencing processes put in

place after Penry. In March 2014, defendant

presented the penalty-phase trial [*529] court with

Defense Motion No. 41. That motion contained, in

part, a standing objection regarding any application

to defendant's case of the aggravated murder

sentencing statutes enacted after the commission of

his crimes. Among other things, defendant argued

that, as applied to him, the presence of the fourth

question set out at ORS 163.150 (1)(b)(D)—

"Whether the defendant should receive a death

sentence"—unconstitutionally subjected him to a

harsher punishment than he could have otherwise

received before the decision in Penry and, [***77]

in any event, served as a sentence enhancer in his

case that was required to be proved by the state

beyond a reasonable doubt.

Although defendant's motion was denied, he

nevertheless submitted a proposed jury instruction

to the trial court in May 2014 that provided that the

state was, as a matter of law, responsible for

proving the fourth question "beyond a reasonable

doubt." Like the motion that had preceded it,

defendant's proposed instruction was also denied.

The instruction that the trial court gave to the jury

regarding the fourth question stated, in relevant

part, that "the burden of proof beyond a reasonable

doubt does not apply to this fourth question."

Defendant now asserts six assignments of error on

review, all of which take issue in some way with

the post-Penry capital sentencing process that was

applied below in this case. Of those six assignments

of error, we address the following three:

"The statute in effect at the time of the crimes

was facially and as-applied unconstitutional,

therefore, the sentencing-only remand trial

court erred in applying the post-Penry I

amendments to the Oregon death penalty

sentencing

scheme

to

[defendant.]"

(Assignment of Error No. 53.)

"The [***78] sentencing-only remand trial

court erred in denying [defendant's] proposed

jury instruction requiring the State to prove an

affirmative answer to the 4th question—should

the defendant receive a death sentence—

beyond a reasonable doubt in violation of his

state and federal constitutional rights under

Article I, sections 10, 11, 13, 15, 16, 20, 21,

and 33, of the Oregon Constitution, and Article

I, section 10, and amendments V, VI, VIII, and

XIV (due process [*530] and equal

protection), to the United States Constitution."

(Assignment of Error No. 52.)

"The sentencing-only remand trial court erred

in failing to apply the requisite beyond a

reasonable doubt standard to the 4th question,

I

I

I

I

I

I I I

I

(and the constitutional responsibility if the facts

require it), to submit to the sentencing jury a

fourth question, in response to which the

sentencing jury may spare a defendant from the

death penalty[.]"

Appendix A

31 a

Page 31 of 35

363 Ore. 482, *530; 424 P.3d 688, **717; 2018 Ore. LEXIS 638, ***78

Appendix A

32 a

which, as applied to [defendant], served as a incorrect.

sentencing enhancer and, therefore, must be

proven by the State beyond a reasonable [*531] In Penry, the defendant had not challenged

the facial validity of the Texas death statute. 492

doubt[.]" (Assignment of Error No. 54.)

U.S. at 315. Instead, he challenged its application

B. Constitutionality of ORS 163.150 (1989)

in his particular case. Specifically, the defendant in

Penry argued that, because the trial court had

With regard to the first of those assignments of refused to expressly instruct the jury that it could

error, number 53, defendant essentially asserts that, take the fact of his limited mental capacity into

as a pre-Penry capital defendant in a post-Penry consideration as evidence mitigating a sentence of

world, the death penalty had simply not been a death, the jury had been unable to fully consider

constitutional option at the time of his crimes, and give effect to that evidence when it was

given the absence of any provision for the presented at trial. Id. at 320.

consideration of mitigating evidence by the

sentencing

jury.

Consequently,

defendant In response, the Supreme Court noted that, when

argues [***79] that application of the fourth the defendant's conviction became final, its own

question in his case interposed a new rule that precedents13 had made clear that a State could

contravened ex post facto state and federal not—consistently with the Eighth and Fourteenth

constitutional protections by subjecting him to a Amendments—prevent

a

"sentencer"

from

harsher penalty than he could have otherwise considering and giving effect to evidence relevant

received at the time he committed his crimes. to the defendant's background, character, or to any

Defendant further contends that, when this court circumstance of the offense that mitigate against

decided Wagner II, it lacked both statutory and imposing the death penalty. Penry, 492 U.S. at 318.

constitutional authority to expand the then-existing Moreover, the Court continued, the facial validity

three-factor capital sentencing scheme previously of the Texas death penalty statute had been upheld

approved by voters in 1984. To support that in Jurek v. Texas, 428 U.S. 262, 96 S Ct 2950, 49 L

proposition, defendant relies on Iselin v. United Ed 2d 929 (1976), on the basis of assurances that

States, 270 U.S. 245, 250-251, 46 S Ct 248, 70 L the special issues at play in capital cases would be

Ed 566, 62 Ct. Cl. 755, 1926-1 C.B. 365, T.D. 3846 interpreted

broadly

enough

to

enable

(1926) (holding that, when statute is drawn with sentencing [***81] juries to consider all of the

[**718] care and its text is plain and relevant mitigating evidence that a defendant might

unambiguous, courts are precluded from supplying present. 492 U.S. at 318. Taking those factors into

presumably inadvertent statutory omissions because consideration, the Court concluded that the rule

doing so "transcends the judicial function").

sought by the defendant in Penry—that, when

mitigating evidence is presented as part of a capital

Defendant's arguments are both founded on the

defendant's sentencing proceedings, juries must,

same premise, namely, that for capital crimes

upon request, be given jury instructions that make it

committed before 1989, Penry and Wagner II each

possible for them to give effect to that mitigating

imposed

new

conditions

regarding

the

evidence in determining whether the death penalty

consideration of mitigating evidence where none

had existed before, Penry at the federal level and

Wagner II at the state level. In the absence of those 13 See, e.g., Eddings v. Oklahoma, 455 U.S. 104, 113-14, 102 S Ct

conditions, defendant asserts, imposition of the 869, 71 L Ed 2d 1 (1982) (applying Lockett v. Ohio, 438 U.S. 586,

98 S Ct 2954, 57 L Ed 2d 973 (1978), to hold that "[j]ust as the State

death penalty in Oregon had not been a may not by statute preclude the sentencer from considering any

constitutional option [***80] when defendant mitigating factor, neither may the sentencer refuse to consider, as a

committed his crimes. That premise, however, is matter of law, any relevant mitigating evidence" (emphasis in

original)).

Page 32 of 35

363 Ore. 482, *531; 424 P.3d 688, **718; 2018 Ore. LEXIS 638, ***81

should be imposed—was not a new rule. Neither

did it impose any new obligation on the state.

Penry, 492 U.S. at 319.

This court tacitly reached a similar conclusion in

Wagner II. Wagner II became necessary after the

United [*532] States Supreme Court required the

court to reexamine its first decision in State v.

Wagner, 305 Ore. 115, 752 P2d 1136 (1988)

(Wagner I), judgment vacated and remanded on

other grounds 492 U.S. 914, 109 S. Ct. 3235, 106

L. Ed. 2d 583 (1989), in light of the Court's thenrecent decision in Penry. In doing so, this court

began by noting that the initial question on

remand—whether the 1987 version of ORS

163.150 permitted the trial court to submit a

"'fourth question'" inquiry to the sentencing jury

regarding the propriety of sentencing the defendant

to death—was strictly a matter of statutory

interpretation. [***82] Wagner II, 309 Ore. at 7.

In the analysis that followed, the court drew on two

broad avenues of statutory inquiry to address the

issue. As to whether ORS 163.150 (1987) allowed

the introduction of all constitutionally relevant

mitigation evidence for the jury's consideration, the

court began by drawing on its decision in Wagner I,

noting that, in that earlier decision, it had

previously construed ORS 163.150 (1987) to mean

that (1) capital defendants must be permitted to

introduce any competent evidence relevant to

mitigation on any of the three issues, Wagner II,

309 Ore. at 11 (citing Wagner I, 305 Ore. at 15657) and (2) juries may consider all mitigating

factors or circumstances that are [**719] shown

by the evidence. Id. at 12 (citing Wagner I, 305

Ore. at 160). Indeed, this court acknowledged that,

in responding to the notion expressed in Wagner I

that a sentencing entity must incorporate

nonstatutory mitigating circumstances into its

sentencing consideration, it had expressly indicated

that "the Oregon scheme is not to the contrary." Id.

(citing Wagner I, 305 Ore. at 161).

Appendix A

33 a

terms of that statute were consistent with the

proposition that trial courts were authorized to

admit the broadest range of mitigating evidence in

capital sentencing cases and [***83] that capital

defendants could, in turn, argue to the jury for a life

sentence based on that evidence. Wagner II, 309

Ore. at 11-12. The court noted, however, that those

provisions did not facially translate into a statutory

right to have a general mitigation question

submitted to the jury. Accordingly, this court

turned to a second statutory inquiry: Did former

ORS 163.150 (1987) [*533] permit a general

mitigation question to be submitted to the jury in a

capital case?

In the course of addressing that second question,

the court first acknowledged that (1) trial courts had

a responsibility to thoroughly instruct jurors

regarding the law controlling their deliberations and

(2) that responsibility was mandated by longstanding statutory sources. The court noted, for

example, that ORCP 58 B(6) and 59 B—rules of

civil procedure otherwise made applicable to

criminal proceedings by ORS 136.330—

respectively provided that "[t]he court * * * shall

charge the jury" and, "[i]n charging the jury, the

court shall state to them all matters of law

necessary for their information in giving their

verdict." Wagner II, 309 at 14-15 (emphasis

added). Moreover, the responsibility to instruct

juries on "all [necessary] matters of law" was

accompanied by a

"'well-established rule [***84] in this state that

HN15[ ] a party litigant is entitled to have the

court instruct the jury upon his theory of the

case as formulated in properly requested

instructions which correctly state the law, and

which are founded upon the pleadings and the

proof in the case.'"

Id. at 15 (quoting Denton v. Arnstein, 197 Ore. 28,

46, 250 P2d 407 (1952) (emphasis added)).

Combining those observations with an examination

This court's examination of former ORS 163.150

of ORS 163.150 (1987) as it pertained to mitigating

(1987) in Wagner II led it to conclude that the

evidence and the direction provided by the

Page 33 of 35

363 Ore. 482, *533; 424 P.3d 688, **719; 2018 Ore. LEXIS 638, ***84

Supreme Court in Penry, this court summarized the

following points from its analysis:

"We are thus left with circumstances in which

(1) the federal constitution requires admission

of all mitigating evidence; (2) the statute

permits admission of such evidence; (3) the

federal constitution requires a mechanism for

meaningful consideration of all mitigating

evidence, including evidence beyond the scope

of the statutory questions; (4) the statute

permits arguments by defendant for life based

on all mitigating evidence; (5) the trial court is

obliged to instruct the sentencing jury on all

necessary matters of law; and (6) defendant is

entitled to an instruction that, notwithstanding

an affirmative answer to the statutory

questions, the jury may conclude that

mitigating

evidence [***85]

justifies

imposition of a life sentence."

Appendix A

34 a

J., dissenting) (stating that the statute "was

unconstitutional

as

written"

and

as

interpreted). [***86] We therefore similarly reject

defendant's argument that application of the fourth

question in his case subjected him to a harsher

penalty than he could have otherwise received

when he committed his crimes by virtue of

purported unconstitutional capital sentencing

statute.

We also reject the notion that, at the time of the

decision in Wagner II, this court lacked the

authority to expand the three-factor capital

sentencing scheme that was part of Oregon's

statutes at the time. The majority opinion in

Wagner II militates for a contrary conclusion, as

does our decision in State v. Upton, 339 Ore. 673,

125 P3d 713 (2005).

The defendant in Upton had been charged in 2004

with multiple counts of racketeering and aggravated

[*534] Wagner II, 309 Ore. at 15-16. Under such theft. In keeping with the United States Supreme

circumstances, the court concluded, trial courts had Court's then-recent decision in Blakely v.

the statutory authority under ORS 163.150(1) to Washington, 542 U.S. 296, 124 S Ct 2531, 159 L

submit a fourth question to sentencing juries that Ed 2d 403 (2004), the charging indictment had

would allow them to spare a capital defendant from included, as a sentencing enhancement factor, an

death. Id. at 16.

allegation that the defendant had been persistently

involved in criminal activities, evidence of which

The principle that we draw from our discussion of

had been set out in the [*535] indictment as a list

Wagner II is this: With regard to mitigating

of the defendant's multiple prior convictions. The

evidence in capital sentencing proceedings held

defendant, however, demurred to the indictment,

before Penry and Wagner II, Oregon law did not

arguing that aggravating factors could not be

prohibit a capital defendant from presenting

alleged in the charging instrument because there

mitigating evidence to the jury or having that jury

was no statutory authority [***87] at the time

rely upon such evidence to spare the defendant's

expressly allowing Oregon trial courts to submit

life. Thus, the proposition advanced here by

such factors to a jury. The trial court did not

defendant that those rights did not exist before

dismiss the indictment, but it did rule that the

Penry does not square with Wagner II and the

defendant's involvement in past crimes could not be

Supreme Court's decision in Jurek. Defendant is

submitted to the jury. Upton, 339 Ore. at 675-76.

correct that, after Penry, the legislature added a

statutory fourth question and this court articulated a In a mandamus case that followed, this court

fourth question in Wagner II. However, the disagreed, noting that nothing in Oregon's statutes

majority of this court in Wagner II had already either (1) limited a jury's ability to make the

rejected defendant's current arguments, which the necessary findings to impose an enhanced sentence

[**720] dissent in Wagner II had urged the court or (2) prohibited implementation of the Sixth

to accept. See Wagner II, 309 Ore. at 24-26 (Linde, Amendment's

requirement

that

sentencing

Page 34 of 35

363 Ore. 482, *535; 424 P.3d 688, **720; 2018 Ore. LEXIS 638, ***87

enhancement factors be proved to a jury beyond a

reasonable doubt. Id. at 679-81. Upton stands for

the proposition that, HN16[ ] when required by

United States Supreme Court rulings on the

constitutionality of a criminal trial procedure, state

courts may comply with such rulings by including,

if appropriate, an additional or alternative step not

otherwise articulated in existing state statutes,

provided that the step in question is neither

precluded by, nor inconsistent with, those statutes.

Upton is consistent with this court's decision in

Wagner II.

C. The Fourth Question: Burden and Standard of

Proof

Finally, we turn to defendant's assignments of

error—numbers 52 and 54—concerning the burden

and standard of proof [***88] as to the fourth

question. Defendant contends that the trial court

erred by (1) failing to instruct the jury that the

fourth question must be proved by the state beyond

a reasonable doubt and (2) failing to require the

state to prove the fourth question beyond a

reasonable doubt.

Defendant argues that, by making the death penalty

in his case a constitutional possibility when it had

not existed before, this court functionally

transmogrified the fourth question into a sentencing

enhancement element that must be proved beyond a

reasonable doubt. Defendant contends that the trial

court's failure to so instruct the jury violated the

United States Supreme Court's decision in [*536]

Apprendi v. New Jersey, 530 U.S. 466, 490, 120 S

Ct 2348, 147 L Ed 2d 435 (2000) (holding that,

other than the fact of a prior conviction, any fact

increasing a criminal penalty beyond the statutory

maximum must be submitted to a jury and proved

beyond a reasonable doubt).

This court expressly rejected defendant's Apprendiviolation argument in State v. Longo, 341 Ore. 580,

148 P3d 892 (2006), cert den, 552 U.S. 835, 128 S.

Ct. 65, 169 L. Ed. 2d 53 (2007). In that case, this

court held that

Appendix A

35 a

HN17[ ] "Apprendi/Blakely applies only to

'facts.' See Blakely, 542 U.S. at 301, 124 S Ct

2531 ('any fact that increases the penalty'

(emphasis added; quoting Apprendi, 530

[**721] U.S. at 490, 120 S Ct 2348)); see also

Ring [v. Arizona], 536 U.S. [584,] 609, 122 S

Ct 2428[, 153 L Ed 2d 556 (2002)] (Sixth

Amendment right to trial by jury applies to 'the

factfinding

necessary

to

put

[a

defendant] [***89] to death'). But the fourth

question does not involve any determination of

fact. Instead, in answering the fourth question,

the jury weighs aggravating factors against

mitigating factors. '[T]he fourth question does

not carry a burden of proof, "because it does

not present an issue subject to proof in the

traditional sense[;] rather[,] it frames a

discretionary determination for the jury."'

Moore, 324 Ore. at 432, 927 P2d 1073

(emphasis and second alter-ation in original;

quoting State v. Wagner, 309 Ore. 5, 18, 786

P2d 93, cert den, 498 U.S. 879, 111 S Ct 212,

112 L Ed 2d 171 (1990)). Because the fourth

question does not involve a determination of

fact, Apprendi/Blakely does not require the

state to prove it beyond a reasonable doubt."

Id. at 605-06. We decline to now abandon that

reasoning here.

VI. CONCLUSION

Although we do not discuss them, we have

examined each of defendant's other penalty-phase

assignments of error and the arguments defendant

has made in support of them. As to those other

assignments of error, we conclude that they are

without merit. Consequently, we affirm the

sentence of death.

The sentence of death is affirmed.

End of Document

Page 35 of 35

Appendix B

36 a

e

Neutral

As of: November 18, 2019 12:46 AM Z

State v. Langley

Supreme Court of Oregon

August 1, 2019, Decided

SC S062353

Reporter

446 P.3d 542 *; 2019 Ore. LEXIS 530 **; 365 Ore. 418

STATE OF OREGON, Plaintiff-Respondent, v.

ROBERT PAUL LANGLEY, JR., DefendantAppellant.

Subsequent History: Reconsideration denied by

State v. Langley, 2019 Ore. LEXIS 608 (Or., Sept.

12, 2019)

Prior History: CC 88C21624. On appellant's

petition for reconsideration and motion for remand

filed October 29, 2018; considered and under

advise-ment on July 9, 2019.* [**1] .

State v. Langley, 363 Ore. 482, 424 P.3d 688, 2018

Ore. LEXIS 638 (Aug. 16, 2018)

Core Terms

modified, petition for reconsideration, circuit court,

motions, preside, assigned, evidentiary hearing,

defense counsel, recon-sideration, penalty-phase,

adhere, defendant argues, death sentence,

disavowing, sentencing, appointed, contends,

removal, Notice, part of the case, former opinion,

deny a motion, time stamp, conversation, evidentiary, impartiality, proceedings, inaccurate, latest,

run-up

Counsel: Karen A. Steele, Salem, filed the petition

for reconsider-ation and motion for remand on

behalf of appellant. Also on the brief was Jeffrey E.

Ellis, Portland.

Judges: Before Walters, Chief Justice, and

Nakamoto, Flynn, Nelson, and Garrett, Justices,

and Brewer and Baldwin, Senior Justices pro

tempore.**. NAKAMOTO, J.

Opinion by: NAKAMOTO

Opinion

[*542] The petition for reconsideration is allowed.

The former opinion is modified and adhered to as

modified. The motion for remand for evidentiary

hearing is denied. Case Summary: Defendant

sought reconsideration of the former opinion of

NAKAMOTO, J.

Defendant petitions for reconsideration of this

court's decision in State v. Langley, 363 Ore 482,

424 P3d 688 (2018) (Langley IV), affirming his

death sentence. Defendant also moves for remand

to the circuit court for an eviden-tiary hearing. We

allow the petition for reconsideration, modify that

decision as to three statements of fact, and adhere

to that decision as modified. We deny the motion

for remand.

First, defendant contends in his petition for reconsideration, among other things, that this court

errone-ously described the [**2] facts concerning

how Judge James of the Marion County Circuit

Court came to preside over his penalty-phase

** Balmer and Duncan, JJ., did not participate in the consideration or

* 363 Ore 482, 424 P3d 688 (2018).

deci-sion of this case.

446 P.3d 542, *542; 2019 Ore. LEXIS 530, **2

proceedings after remand from this court pursuant

to State v. Langley, 351 Ore 652, 273 P3d 901

(2012) (Langley III). Specifically, defendant notes

that the [*543] opinion's procedural narrative

states that, before defendant's new sentencing trial,

"[o]n April 6, 2012, Judge Jamese Rhoades,

Presiding Judge of the Marion County Circuit

Court, filed a circuit court form titled Criminal

Assignment Notice as part of the run-up to

defendant's latest penalty-phase proceeding. In

that document, Judge Rhoades assigned Judge

Mary Mertens James to preside over

defendant's remanded sen-tencing trial."

Langley IV, 363 Ore at 487. Defendant argues that

that state-ment is inaccurate because the record

does not show that Judge Rhoades actually "filed"

such a notice or that she was personally responsible

for assigning Judge James to defen-dant's case.

We agree with defendant, and we modify the opinion by disavowing the quoted text set out above and

instead describe the facts through the following

text:

"On April 6, 2012, the Marion County Circuit

Court generated a Criminal Assignment Notice

as part of the run-up to defendant's latest

penalty-phase

proceeding.

In

that

document, [**3] Judge Mary Mertens James

was assigned to preside over defendant's

remanded sentencing trial."

Second, the opinion recites that, in the course of

further discussing her own recusal with the parties,

Judge James

"acknowledged that she and Judge Rhoades

had, at some point as part of the case

assignment process, discussed whether she,

Judge James, could impartially preside over

defendant's case."

Langley IV, 363 Ore at 488 (emphasis added). In

seeking recon-sideration, defendant argues that,

because the record fails to establish that Judge

Rhoades had personally appointed Judge James to

Appendix B

37 a

preside over defendant's case, it was incor-rect to

describe the subsequent conversation between the

two jurists regarding Judge James's impartiality as

being "part of the case assignment process."

That argument is well-taken. On review of the

record, we agree that the conversation occurred

after Judge James was assigned to the case.

Accordingly, the court mod-ifies the opinion by

disavowing the emphasized text quoted above.

Third, defendant contends that there is at least a

factual dispute regarding when defense counsel first

filed motions seeking Judge James's removal from

the case. In that regard, the opinion states:

"Defendant's newly [**4] appointed defense

counsel appar-ently learned of that assignment

on Monday, April 23, 2012, and, on Friday,

April 27, 2012, filed two motions seek-ing

Judge James's removal from the case."

Langley IV, 363 Ore at 487 (emphasis added). The

motions were time-stamped by the clerk of the

circuit court on April 27, 2012. But defendant

argues in his petition for reconsideration that other

evidence in the record, including an affidavit of

service, indicates that the filing occurred the day

after defense counsel was assigned to represent

defen-dant and that the date stamped on the

motions reflects a time lag in the court clerk's

processing of the motions. To describe with

particularity the date of the time stamp on the

motions, we disavow the emphasized text above

and instead describe the filing of the motions with

the following text:

"Defendant's newly appointed defense counsel

appar-ently learned of that assignment on

Monday, April 23, 2012, and filed two

motions—which contain time stamps by the

circuit court clerk's office dated April 27,

2012—seeking Judge James's removal from the

case."

Although we modify the opinion in those three

aspects, we disagree with defendant's further

argument that (1) those modifications [**5]

Page 2 of 3

446 P.3d 542, *543; 2019 Ore. LEXIS 530, **5

Appendix B

38 a

materially affect the analysis of his contentions on

appeal that Judge James, once assigned, should not

have presided over the penalty-phase proceedings

on remand and (2) the factual inaccuracies that

defendant notes rise to the level of constitutional

error because defen-dant's death sentence was

affirmed based on inaccurate and incomplete facts.

We have considered and reject each of the other

issues that defendant raises in his petition for reconsideration, and we adhere to our opinion as

modified.

[*544] In conjunction with his petition for

reconsideration, defendant has filed a motion for

remand for an evidentiary hearing. Defendant

contends that disputes of fact material to the

resolution of the following claims require an

eviden-tiary hearing:

"Judicial bias (Assignments of Error Nos. 1-20

and 21-23); ex parte (Assignments of Error

Nos. 3, 4, 11 and 14); Motion for New Trial

(Assignments of Error Nos. 21-25); limiting

instruction / probative versus prejudice

(Assignments

of

Error

Nos.

33-37);

proportionality (Assignments of Error Nos. 3945); and failure to disclose discovery of

victim's sis-ter not wanting a death sentence

(Assignment of Error No. 48)."

(Emphases in original; footnotes [**6] to pages of

petition for reconsideration omitted.) In accordance

with our disposition of defendant's petition for

reconsideration, we conclude that a remand for an

evidentiary hearing is not required and deny the

motion for remand.

The petition for reconsideration is allowed. The former opinion is modified and adhered to as

modified. The motion for remand for evidentiary

hearing is denied.

End of Document

Page 3 of 3

Appendix C

39 a

IN THE SUPREME COURT OF THE STATE OF OREGON

STATE OF OREGON,

Plaintiff-Respondent,

v.

ROBERT PAUL LANGLEY, JR.,

Defendant-Appellant.

Marion County Circuit Court

88C21624

S062353

APPELLATE JUDGMENT

On automatic and direct review of the sentence of death imposed by the Marion County

Circuit Court.

Mary Mertens James, Judge.

Argued and submitted on September 22, 2017.

Attorney for Appellant: Karen A. Steele.

Attorney for Respondent: Timothy A. Sylwester.

Before Walters, Chief Justice, and Nakamoto, Flynn, and Nelson, Justices, and Brewer

and Baldwin, Senior Justices pro tempore.

The sentence of death is affirmed.

DESIGNATION OF PREVAILING PARTY AND AWARD OF COSTS

Prevailing party: Respondent.

[ X ] No costs allowed.

Appellate Judgment

Effective Date: September 23, 2019

SUPREME COURT

(seal)

els

APPELLATE JUDGMENT

REPLIES SHOULD BE DIRECTED TO: State Court Administrator, Records Section,

Supreme Court Building, 1163 State Street, Salem, OR 97301-2563

Page 1 of 1

Appendix D

40 a

APP-049

STATE OF

Measure No. 5 & No. 6 OREGON

ARGUMENT IN FAVOR

Submitted to the Electorate of Oregon by Initiative Petition, t~ be

voted on at the General_Election, November 6, 1984.

The most important task facing Oregon is the creation of new

jobs for its citizens. That is why many of Oregon's leaders are

working hard for the passage of Ballot Measures 4 and 5 - the

companion measures that would establish a state-operated lottery.

· The proposed Oregon State Lottery would raise an estimated

$167 million in ticket sales in the first year. This would provide without.a penny of tax increases: .

·

.·

.

1. At least $56.8 million for job creation a~d economic develop -

ment; .,

·

·.

·

·

·

2. At least $83.5 million that would go back to the ticket buyers ·

as prizes; and

3. Over $8 million as commissions to lottery ticket sellers, also

benefiting Oregon 's economy.

·

Studies indicate that Oregonians now are spending millions of

dollars every year buying lottery tickets from our northern neighbor,

Washjngton,.. To our south, California is expected to start a huge

lottery operation early in 1985. The money t~at now is being spen_t

by Oregonians.in Washington, and would be spent in th'e California

· lottery, should pe spen tin-Oregon for the benefit of Oregonians!

Seventeen states no~ op~~ate ~tate lott~rie1/ totaily free from

organized crime infiltration. They are all successful ....;.·as measured

in dramatic i_ncreases in annual sales arid profits. ·

·

Lotteries are fun - and voluntary. There are many lottery

games; some have instant winners, others have periodic .drawings.

The Lottery Commission has the flexibility to conduct a variety of

. lottery games using any technology, including traditional tickets,

on-line computers, and instant game video terminals (which cannot

dispense cash or have fruit symbols like a slot. machine) .

Tickets could be sold only by· establi~hed retail outlets: No

tickets could be sold - or prizes awarded - to anyone younger than

18.

· ·.. ·. . ,·

.. .

._ . ·

.

·

Honesty and integrity of the Oregon St~te Lottery are assured

by the tight security provisions contained in Ballot Measure 5. Daily

· accounting of all funds- received and prizes awarded will be doublechecked by state and independent experts using the most modern

techniques available . .In addition, the measure mandates periodic

independent and state audits.

·.

The measure requires thorough in·vestigations of all persons

employed by the lottery and those who supply goods and services.

They also must submit full public disclosure statements.

·

To help Oregonians earn paychecks to take home to their

families - without raising taxes -:- vote YES on Ballot Measure 5!

,

.

Submitted by: Hank Crawford, Chairman

Citizens for Economic Recovery

PO Box 455

Salem, OR 97308

(This space purchased for $300 in accordance with ORS 25.1.255.)

The printing of this argument does not constitute an endorsement by the State of Oregon, nor does the state warrant the

· accuracy or truth of any statement made in the argument.

NO ARGUMENTS OPPOSING THIS ·BALLOT MEASURE WERE FILED WITH THE SECRETARY OF

STATE.

28

'

-~ ..

. .

B~ It Enacted_by the People of _the State of Oregon:

,

,

,

PARA GRAPH 1. The Co~~titution of th~ State of Oregon

is amended .by creating a new section 40 to be added to and made a

part of Ar_ticle I and to read:

·

·

··

SECTION 40. Notwithst:anding-sections 15 and 16 of this

Article, the penalty for aggravated murder as defined by law shall be

death upon unanimous affirmative jury findings as provided by -law

and otherwise shall be life imprisonment with miilimum sentence as

provided by law.

· · ··

·

·

The Bill of Rights of the Oregon Constitlltion contains one section

which states that "Laws ·for the punishment of crime shall be

founded cin the principles of reformation, and not of vindictive ·

justice." Another provision of the Oregon Bill of Rights 'states that

"Cruel and unusual punishments ~hall not be inflicted" and prohib- ·

its disproportionate punishments. ' .

. .

· ·.

If adopted, Measure _No. '6_would arriend the Bill of Rights of the .

Oregon Constitution to do two things. First it would require death as

the penalty for aggravated murder if there is a unanimous jury

decision to that effect. If the death penalty is not imposed by the

jury for aggravated murder, the penalty shall be life imprisonment

with a minimum sentence to be set by statute.

·

Second, it would ex~mpt the death pen~lty from the guarantees in

the Oregon Bill of Rights _against vindictive justice and against

cruel, unusual and disproportionate punishments.

"Aggravated murder" is defined by stat ute and can be changed by

the legislature or by a vote of the people.

Committee Members:

Charles F. Hinkle

Myron B. Katz

Representative Norman Smith

Dedi Streich .

•

Michael D. Schrunk

Appointed by:

Secretary of State

Secretary of State

Chief Petitioners

Chief Petitioners

Members cif the Committee

(This Committee appointed to provide an impartial explanation of

the ballot measure pursuant to ORS 251.215.)

. Official 1984 General Election Voters ' Pamphlet

Appendix D

41 a

APP-050

I

CONTINUED I ►

STATE OF

Measure No. 6 OREGON

I

ARGUMENT IN FAVOR

ARGUMENT IN FAVOR

Ballot Measure 6 adds the death penalty fur aggravated murder

to the Oregon Constitution. It is a companion to Ballot Measure 7.

To reinstate the death penalty voters must vote yes twice - once

for Measure 6, and again for Measure 7.

In recent years the Federal Supreme Court has upheld the legality of

capital punishment. Some have attacked this decision as being

unworthy of a "truly civilized society" and as being unchristian. Yet

the death penalty is consistent with Christianity and with the moral

needs of society.

If you support the death penalty don't be confused by the ballot

title on Measure 6. It was written by the Oregon Supreme Court at

the insistence of the ACLU - the same court which struck down as

'.'unconstitutional" the people's 1978 initiative to reinstate the

death penalty. A majority of the legislature refused in two sessions to

cure the defect.

The reason that supporters of the death penalty wish to amend

the Oregon Constitution and state statutes; too, in separate measures (six and seven) is to clarify absolutely to the courts and to the

legislature what most Oregonians want: justice, fairness, safeguards

for potential victims, their loved ones, and the accused.

The U.S. Constjtution provides the ultim~te protection against

"cruel and unusual punishment," and is in no way affected by the

changes proposed in Measure 6. The measure if passed would clarify

Oregon's Constitutional provision that requires our state criminal

justice system to be based on principles of reforming a convict rather

than being vindictive.

Supporters of Measure 6 to reinstate cap ital 'punishment want:

1. to apply the death penalty only to cases of conviction for

"aggravated murder,". that murder which society deems the

worst of worst cases, the most heinous and bloodthirsty; that

which js committed by a felon, who is deemed a continuing

danger to Oregonians.

·

I

l

2. to reduce the cha·nces that the State courts might throw out

the death penalty in the belief that every multiple murderer can

be refornied. The fut.ure safety of our citizens must be paramount.

The Bible, in the sixth commandment (Exodus 20 :1 3), prohibits

murder; that is, "the killing of a human being unlawfully and with

premeditated malice." The word for "murder" here differs from that

for "kill" and cannot be used to prohibit capital punishment:

Capital puriishment today, is consistent with the original institution

of the death penalty. It is part of an everlasting covenant symbolized

by the rainbow (Gen. 9:5- 17). God mandates that man, organized

collectively in government, exact death upon the murderer. No

mode is prescribed, only the penalty itself.

While not all old testament teaching· is· reiterated in the New

Testame·nt, this particular teaching is. The plain, normal sense of

Romans 13: 1-7 recognizes the state's power to exercise the death

penalty and to punish evil and promote good,

This position is the only one which is truly . consistent with the

dignity of man, as Genesis 9:6 makes cleaL Man is a creature created

by God (Gen. 1:27;.2:7); he bears the image of God. To snuff out a

human life is a crime not only against man and society but also

against God and His prerogative. To murder someone is tantamount

to killing God in effigy.

Capital punishment . is consistent with the meaning of various

injunctions contained in the Sermon on the Mount, such as "love

your enemies" and the prohibition against retaliation in Matthew

5:38ff. Indeed, this must be so since Christ came to fulfill the law,

not to destroy it (5:17-20). In this Sermon Christ was primarily

describing personal standards of conduct for. a son of the kingdom,

not those of governments. ,Jesus will return as warrior. Those who

embrace the Jesus of Matthew 5, but who reject Him as the Coming

Executor of Revelation 1:16, 2: 12,1 6; 19:1 5 have a false Christianity.

3. to adequately protect any innocent person, who might. be

charged with. aggravated murder, by requiring unanimous jury _ Vote Yes on Measure 6

· decisions on guilt and again on the appropriateness of the death

Rev. Stu Weber

penalty instead of an alternate, long prison sentence - with all

Rev. John Van Diest

decisions m~de on the basis of "beyond reasonable doubt."

Dr. Allan Hamilton

Measure 6 is endorsed by people who respect the law, such as:

Rev. Stephen K. Bush

the Oregon Sheriffs' Association, the Oregon Council of Police

Rev. James Larson

Associations, the Oregon Farm Bureau Federation.

VOTE YES ON MEASURES 6 AND 7.

Submitted by; Concerned Oregonians for Justice

Dedi Streich, Chairman

PO Box26

Sherwood, OR 97140

(This space purchased for $300 in accordance ivith ORS 251.255.)

Rev. Donald Poundstone

Dr. Neal F. McBride

Dr. James De Young

Dr. Joe Aldrich

Submitted by: Clergy Concerned for Biblical Justice

Dr. James DeYoung, Chairman

14725 SE 187th

Clackamas, OR 97015

(This space purchased for $300 in accordance with ORS 251.255.)

Th e printing of this argument does not constitute an endorsement by the State of Oregon, nor does th e state warrant th e

accuracy or truth of any statement made in the arg ument.

Th e printing of this argum ent does. not constitute an endorse·

ment by the State of Oregon, nor does th e state warrant the

accuracy or truth of any s_tatement made in the arg un·1ent.

Official 1984 General Election Voters' Pamphlet

29

Appendix D

42 a

APP-051

CONTINUED

.

ARGUMENT IN OPPOSITION

ARGUMENT IN ·OPPOSITION

WHY YOU SHOULD VOTE Nd ON MEASURE 6

(DEATH PENALTY)

There is a problem ..Murder and violence are all around. What is the

answer? The death pena_lty is not the ans,ver.

·

Did you know that many innocent people have been arrested,

convicted, and sentenced to die ? Why? Because ofour failure. to

follow God's rules for government. ·

To work toward an answer we must:

God does require the ·death penalty for certain types of'murder,

but God also re.quires the government to produce two witnesses for

any criminal trial (Numbers 35:30; Deuteronomy 17: 3-6). Our

criminal. code does not require two witnesses. This leads to some

innocent people being convicted and killed by capital punishment.

In addition, Oregon's definition of aggravated murder (ORS

163.095)'includes categories of murder that the Bible says shou ld be

punished by banishment to a "city of refuge" until the judge dies.

If you Vl)te yes the blood of innocent p~ople will be on your

· hands. If \ve are to have true justice we must base all our laws on

God's Word in the Holy Bible.

.

60:12:

Isaiah

"F~r the nation and kingdom that will not serve

thee shall

perish; yea, those

nations shall.be utterly wasted."

.

.

an eye." really meant, "Let th~ punishment not exceed the

crime." It was a stat~ment agaiilst uiiequal justice.

'

HOW YOU CAN GET TO HEAVEN AND NOT TO H_ELL

JESUS CHRIST IS YOUR ONLY PROVENAND GUARANTEED WAY TQ HEAVEN. Jesus has already paid the penalty

for your sins. He -was crucified, buried, and rose three days later.

Jesus will soon return to judge you.

Hi>wcanyou then get to Heaven? It is easy. Simpl)'REPENT

(turn from sin) and TRUST JESUS as your Lord and Savior. If you

do not Repent and trust Jesus

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